EXHIBIT 10.7
Terms offered are valid only through
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PRIMUS KNOWLEDGE SOLUTIONS, INC.
Software Marketing and Distribution Agreement
Primus Contract ID: SMDA
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This Agreement ("Agreement") is made between Primus Knowledge Solutions, Inc.
("Primus"), ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
(fax: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇) and
Distributor Name: Primus Knowledge Solutions, KK, a Japanese corporation
("Distributor")
Distributor Address: Ebisu Prime Sq. Tower
▇-▇-▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇, ▇▇▇▇▇ 150
Fax No.: ▇▇▇ ▇-▇▇▇▇-▇▇▇▇
Primus is the owner and licensee of the Software (defined below). Primus wishes
to market and distribute the Software in the Territory (defined below).
Distributor has know-how and experience in marketing and distributing software
in the Territory, and in providing related services, and wishes to assist
Primus. Primus is willing to appoint Distributor to market and distribute the
Software in the Territory, and Distributor is willing to accept such
appointment, all on the terms and conditions specified below. Therefore, for
good and valuable consideration, the receipt and sufficiency of which they each
acknowledge, Primus and Distributor agree to be bound by such terms and
conditions.
EXECUTED as of the date set forth below Primus' signature (the "Effective
Date"):
Primus Knowledge Solutions, Inc. Distributor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its: President and Chief Executive Officer Its: Board of Directors
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Date: March 31, 1999 Dated: March 31, 1999
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Terms and Conditions
Table A Distributor's Rights
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Product Language Platform Exclusivity Territory Distribution Term
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Operating Database Exclusive Non-Exclusive Start Date End Date
System
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Primus Products Windows First
NT No Effective anniversary
SolutionSeries(TM) Japanese & limitation/1/ Yes No Japan Date of Effective
Server and Sun Date
SolutionExplorer(TM) English Solaris/1/
SolutionPublisher(R)
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SolutionSeries(TM) Japanese Windows First
Server and NT No Effective anniversary
SolutonExplorer(TM) English & limitation/1/ No Yes Korea Date of Effective
SolutionPublisher(R) Sun Date
Solaris/1/
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Upstream Supplier
Products
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Seagate Crystal Info English Windows First
V.6/2/ and NT N/A No Yes Japan and Korea Effective anniversary
Japanese Datee of Effective
Date
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KBI Total Product English N/A No Yes Japan and Korea Effective 1/30/2000
Support Suite Date
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Note 1: So long as Primus markets them to its own customers
Note 2: Limited to Client License and Report/Query license (no OLAP license)
and subject to the licensing and other restrictions set forth in
Schedule 7
Table B Software Distribution Fees and Support and Maintenance Fees
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Product Language Platform Distributor's Resale Software Royalty Primus Maintenance
--------------------------- Price Percentage Fee Percentage
Operating Database
System
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Primus Products Windows
SolutionSeries(TM) English NT No [*] [*] [*]
Server & limitation/3/
SolutionExplorer(TM) English Sun [*] [*] [*]
SolutionPublisher(R) English Solaris/3/ [*] [*] [*]
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Primus Products Windows
SolutionSeries(TM) English NT No US[*] [*] [*]
Server & limitation/3/
SolutionExplorer(TM) English Sun US[*] [*] [*]
SolutionPublisher(R) English Solaris/3/ US[*] [*] [*]
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[*] - omitted, confidential material, which material has been separately filed
with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
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Product Language Platform Distributor's Resale Software Royalty Primus Maintenance
--------------------------- Price Percentage Fee Percentage
Operating Database
System
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Upstream Supplier
Products
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Seagate Crystal Info English Windows NT N/A ▇▇▇ ▇▇▇ TBD
V.6
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KBI Total Product English N/A ▇▇▇ ▇▇▇ TBD
Support Suite
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Note 3: So long as Primus markets them to its own customers
Note 4: Distributor may provide one SolutionSeries Server to each of its
customers at no charge, and without incurring royalty obligations
to Primus
Note 5: Per concurrent user
Note 6: Per pack of 25 concurrent user
Table C Services Fees
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Service Description Location Fee per Labor Day (US $) Distributor's Discount Effective Period
From Applicable Start Date End Date
List Price
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Primus Services
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Sales Training Seattle Applicable List Price [*] Effective First
Date Anniversary
Effective
Date
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Certification--Client Services Seattle Applicable List Price [*]
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Certification--Technical Support Seattle Applicable List Price [*]
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Client Services United States Applicable List Price [*]
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Table D Distributor's Performance
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Products Net Revenues Qualified Sales Qualified Qualified Marketing Effective Period
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(US $) Persons Consultants Technicians Funds (US $) Start Date End Date
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SolutionSeries Server,
SolutionExplorer and Effective 12/31/99
SolutionPublisher [*] 2 2 1 N/A Date
products
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Table E Referral Fees
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Products Referral Percentage Effective Period
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Start Date End Date
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Primus Products 10% First Anniversary of
---------------------------------------------------------------------------------------- Effective Date Effective Date
Seagate Products 10%
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KBI Products 10%
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Section 1. Definitions
For purposes of this Agreement, the following capitalized phrases shall be
ascribed the following meanings:
1.1 "Affiliate" means a Person in which another Person (i) owns equity
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possessing at least fifty percent (50%) of the equity interest, or (ii) controls
equity possessing at least twenty percent (20%) of the total combined voting
power of all classes of equity entitled to vote.
1.2 "Applicable List Price" means Primus' then current list prices for the
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Territory, as notified by Primus to Distributor from time to time, for: (i) the
Software; (ii) the provision of technical support services and Updates; and
(iii) any sales training, certification or client services provided by Primus
(except to the extent specified otherwise in Table C).
1.3 "Confidential Information Agreement" means Primus' standard form Bilateral
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Non-Disclosure Agreement, a copy of which is attached to this Agreement as
Schedule 1. "Confidential Information" shall have the meaning ascribed to it in
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such agreement.
1.4 "Distribution Term" means the period specified in Table A for each Software
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product, and during which Distributor and its Sub-Distributors may exercise the
rights granted to Distributor under Section 2. Primus or Distributor may
terminate the Distribution Term as described in Section 10.
1.5 "Documentation" means the Software user, system administrator and technical
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manuals and other documentation, including additional, updated or revised
documentation, if any, that Primus provides to Distributor.
1.6 "End User" means any Person that acquires a license to use the Software for
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production end user purposes, and not for redistribution, and that has executed
a License Agreement with Distributor or a Sub-Distributor.
1.7 "End User Maintenance" means the provision to End Users of technical
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support services with respect to the Software, and the distribution of Updates
to End Users by Distributor or any sub-distributors, all in accordance with the
provisions of the Support and Maintenance Agreement. "End User Maintenance
fees" means the fees payable to Distributor by End Users for End User
Maintenance.
1.8 "Evaluation Agreement" means a form of software evaluation agreement that
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is identical in all material respects to Primus' then current standard
evaluation license agreement for the Territory, the current form of which is
attached to this Agreement in Schedule 2. Primus may change the current form of
evaluation license agreement from time to time and at any time, upon prior
written notice to Distributor.
1.9 "Evaluator" means any Person that acquires a license to evaluate the
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Software and that has executed an Evaluation Agreement.
1.10 "Exclusive Software" means the Software specified in Table A as being
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subject to Distributor's exclusive distribution rights in the specified
Territory.
[*] - omitted, confidential material, which material has been separately filed
with the Securitities and Exhange commission pursuant to a request for
confidential tratment.
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1.11 "Initial Software" means the first version of each Software product that
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Primus delivers to Distributor pursuant to this Agreement, together with any
modifications thereof delivered to remedy any non-compliance with the warranties
under Sections 9.3.1-9.3.3.
1.12 "License Agreement" means a form of software license agreement that is
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identical in all material respects to Primus' then current standard end user
license agreement for the Territory, the current form of which is attached to
this Agreement in Schedule 2. Primus may change the current form of end user
license agreement from time to time and at any time, upon prior written notice
to Distributor.
1.13 "Net Revenue" means the amount of Software license and Primus Maintenance
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fees actually paid by Distributor to Primus under this Agreement and recognized
by Primus as revenue in accordance with United States "Generally Accepted
Accounting Principles", exclusive of shipping charges, customs, import and
export duties, value added taxes and other sales taxes, and duties.
1.14 "New Software" means any versions of the Software delivered to Distributor
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by Primus other than the Initial Software.
1.15 "Non-Exclusive Software" means the Software specified in Table A as being
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subject to Distributor's non-exclusive distribution rights.
1.16 "Performance Goals" is defined in Section 3.1.1.
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1.17 "Person" means any individual, partnership, company, corporation, trust,
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association or other entity or organization whatsoever.
1.18 "Primus Maintenance" means Primus' provision of support and maintenance to
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Distributor, namely Secondline Support and Updates. Primus Maintenance fees
means the fees payable to Primus by Distributor for Primus Maintenance.
1.19 "Primus Software" means the object code version of Primus' computer
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software programs (including any third party products licensed by Primus and
embedded in Primus' computer programs) identified in Table A as Primus products.
1.20 "Qualified Consultant" means a client services consultant employed by
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Distributor who has completed a Primus client services certification course
within the past twelve (12) months.
1.21 "Qualified Sales Person" means a sales person employed by Distributor who
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has completed a Primus sales training course within the past twelve (12) months.
1.22 "Qualified Technician" means a technical support analyst employed by
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Distributor who has completed a Primus technical support certification course
within the past twelve (12) months.
1.23 "Secondline Support" means Primus' obligations to provide technical
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support to Distributor's technical support organization, as more particularly
described in Schedule 3.
1.24 "Software" means all or any portion of (i) the Primus Software, (ii) the
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Upstream Supplier Software, and (iii) any Updates.
1.25 "Sub-Distributor" means any Person that distributes computer hardware or
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software, or that provides related services, and that has executed a Sub-
Distribution Agreement with Distributor either (i) to make the Software and
Documentation available to End Users in conjunction with such Person's other
products or services, or (ii) to distribute the Primus Software and the Upstream
Supplier Software and Documentation on a stand-alone basis.
1.26 "Sub-Distribution Agreement" means a written agreement between Distributor
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and each Sub-Distributor that provides the Sub-Distributor with certain sub-
licensing rights to the Software and Documentation, which rights shall not
exceed those granted to Distributor by Primus under this Agreement.
1.27 "Support and Maintenance Agreement" means a form of end user support and
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maintenance agreement that is identical in all material respects to Primus' then
current standard end user support and maintenance agreement for the Territory,
the current form of which is attached to this Agreement in Schedule 2. Primus
may change the current form of end user support and maintenance agreement from
time to time and at any time, upon prior written notice to Distributor.
1.28 "Term" means the term of this Agreement, as more fully described in
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Section 10.
1.29 "Territory" means the geographic area specified in Table A.
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1.30 "Trademarks" means: (i) Primus' trademarks Primus, SolutionSeries,
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SolutionBuilder, SolutionExplorer, SolutionPublisher and their associated logos;
(ii) any applicable Upstream Supplier Trademarks; and (iii) and any and all
other trademarks and/or service marks that Primus may use and approve in writing
for use by Distributor in connection with the Software.
1.31 "Updates" means new releases, major releases and maintenance releases of
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the Software which Primus or the applicable Upstream Supplier does not designate
as different products for which it charges separately
1.32 "Upstream Supplier" means a third party that has granted Primus a license
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to distribute and sub-license products developed by the third party (or its
licensors).
1.33 "Upstream Supplier Software" means the object code version of any Upstream
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Supplier's computer software programs (including any third party products
licensed by the Upstream Supplier and embedded in such computer programs)
identified in Table A as Upstream Supplier products.
1.34 "Web Access Customers" means the end user customers of any End User who
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access the server portions of the Software via the World Wide Web using a
browser interface, to retrieve information from (but not contribute information
to) the End User's database.
1.35 Tables. References to Tables include any subsequent Tables (numbered A-1,
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A-2 and so forth) to which both of the parties agree in writing.
Section 2. Appointment as Distributor
2.1 Appointment. Subject to the provisions of this Agreement, Primus hereby
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appoints Distributor, for the duration of the Distribution Term and throughout
the world, as a distributor for the marketing, distribution and sub-licensing of
the Software to Persons whose head offices are located in the Territory. The
appointment shall be exclusive with respect to the Exclusive Software, and non-
exclusive with respect to the Non-Exclusive Software. Distributor hereby accepts
such appointment.
2.2 License Grants. Subject to the provisions of this Agreement, Primus hereby
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grants to Distributor, and Distributor hereby accepts:
2.2.1 Marketing and Distribution: A limited, worldwide, non-transferable
license, with limited right to sub-license to Sub-Distributors, throughout the
Distribution Term, to (i) promote, market and demonstrate the Software and
Documentation to Persons whose head offices are located in the Territory, and
(ii) distribute the Software and Documentation throughout the Territory to End-
Users and Evaluators whose head offices are located in the Territory. The
foregoing license shall be an exclusive license with respect to the
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Exclusive Software and related Documentation (subject to Section 2.2.5 below),
and a non-exclusive license with respect to the Non-Exclusive Software and
related Documentation.
2.2.2 Right To Sub-License To End-Users and Evaluators: A limited,
worldwide, non-transferable license, with limited right to sub-license to Sub-
Distributors, throughout the Distribution Term, to sub-license the Software and
Documentation to End-Users and Evaluators whose head offices are located in the
Territory. The foregoing license shall be an exclusive license with respect to
the Exclusive Software and related Documentation (subject to Section 2.2.5
below), and a Semi-Exclusive license with respect to the Semi-Exclusive Software
and related Documentation, and a non-exclusive license with respect to the Non-
Exclusive Software.
2.2.3 Internal Use: A limited, worldwide, non-exclusive, non-transferable
license to reproduce, distribute and use the Software and Documentation for
Distributor's internal, non-production purposes during the Term, solely to the
extent reasonably necessary to enable Distributor to (i) promote, market and
demonstrate the Software, (ii) become familiar with the Software for purposes of
providing End User Maintenance to End Users and Evaluators, and (iii) make back-
up and archival copies.
2.2.4 Limitations on Exclusivity. Notwithstanding any provision of this
Agreement to the contrary, the grants from Primus to Distributor contained in
Section 2.1 and this Section 2.2 shall not be deemed to prohibit:
(i) the sub-licensing of the Software to an end user located within
the Territory by a Person located outside the Territory, provided that: (a) such
Person is authorized by Primus to license Software to its own Affiliates, and
the End User located in the Territory is an Affiliate of such Person, (b) such
Person is offering Software in combination with other products on an OEM or VAR
basis as an authorized distributor of Primus, or (c) the end user is a Web
Access Customer;
(ii) an End User's providing a Person located outside the Territory
with access to the server portions of the Software, provided that: (a) the
server on which the server portions of the Software are installed is under the
custody and control of the End User, and (b) such Person is either (x) an
Affiliate of the End User and is bound by the terms of the End User's License
Agreement, or (y) is a Web Access Customer of the End User;
(iii) the promotion and marketing of the Software via the Internet and
on the World Wide Web by Primus or any licensor, licensee or sub-licensee of
Primus.
2.3 Reservation. Primus reserves all rights to the Software, Documentation and
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Confidential Information of Primus not expressly included in the scope of the
grant of rights to Distributor in this Agreement. Without limiting the
generality of the foregoing, Distributor shall use the Software only for the
purposes specified in Section 2.2 and in accordance with the following:
2.3.1 Modifications, Combinations and Translations. Without Primus'
specific, prior written consent, which Primus may provide or withhold in its
sole and absolute discretion, Distributor may not: (i) modify or create
derivatives of the Software or the Documentation; (ii) incorporate the Software
into any other computer software program; or (iii) translate any of the Software
or the Documentation. Primus may condition its consent upon Distributor's
written agreement to such commercial terms respecting (a) Distributor's
compensation for its efforts, and (b) technical specifications, as are mutually
acceptable to each of Primus and Distributor.
2.3.2 Ownership of Derivatives. Any modifications, translations or other
derivative works made to or derived from the Software or Documentation by
Distributor or any Person given access to the Software by Distributor, and all
related intellectual property rights (collectively, "Derivatives"), shall be
deemed to be work made for hire on behalf of Primus, and Primus shall be the
sole owner of all right, title and interest in and to such Derivatives. To the
extent that ownership of any Derivative does not vest in Primus by operation of
law, Distributor hereby assigns, and shall ensure assignment of all right, title
and interest in and to such Derivative to Primus. Upon request by Primus, and at
Primus' reasonable expense, Distributor shall execute all such written
agreements and instruments, and take all such other action as may be necessary
to perfect Primus' title in and to any Derivative. Nothing in this Section 2.3.2
shall be deemed to provide Primus with ownership rights in (i) products owned by
Distributor or its other licensors, and which Distributor combines with the
Software or the Documentation, or (ii) any know-how of Distributor that
Distributor uses to create any Derivative, except to the extent that such know-
how relates solely to the Software or Documentation.
2.3.3 Media. Unless Distributor first obtains Primus' prior written
consent, not to be unreasonably withheld, Distributor may only distribute the
Software to End-Users and Evaluators on CD-ROM or magnetic disk.
2.3.4 Appointment of Sub-Distributors. Before appointing any Sub-
Distributor, Distributor shall obtain Primus' written approval (not to be
unreasonably withheld) to an accurate English translation of Distributor's
proposed model Sub-Distribution Agreement (the "Model Agreement"). Subject to
Distributor's obtaining such approval, the initial Sub-Distributors shall be the
Persons listed in Schedule 4. Distributor may not appoint any other Sub-
Distributors without obtaining Primus' prior written approval (not to be
unreasonably withheld). Distributor's request for approval shall contain, at a
minimum: (a) the name and a description of the proposed Sub-Distributor; and (b)
an accurate English translation of the proposed Sub-Distribution Agreement,
marked to show changes from the Model Agreement. Distributor shall ensure that:
(i) Distributor may unilaterally terminate all Sub-Distributor appointments and
associated license rights upon termination of the Distribution Term, in each
case without any liability on the part of Primus; (ii) Sub-Distributors shall
have no right to appoint sub-distributors; (iii) the relevant Sub-Distribution
Agreement permits Distributor's assignment of the Sub-Distribution Agreement to
Primus or its nominee; (iv) each Sub-Distributor complies with the obligations
of Distributor under this Agreement, as though such obligations applied directly
to the Sub-Distributor; and (v) Primus is a third-party beneficiary of
Distributor's rights with respect to each of its Sub-Distributors.
2.3.5 No Conveyance of Ownership; Trade Secrets. This Agreement does not
convey any ownership of the Software or Documentation or any media on which the
Software or Documentation is stored, but only the right to transfer possession.
Title to copies of the Software and the Documentation distributed under this
Agreement shall remain with Primus at all times. Distributor acknowledges that
the Software, the Documentation and Primus' Confidential Information constitute
trade secrets and are the valuable property of Primus and its licensors, and
that the Software and Documentation are protected by copyright and trademark
rights.
2.3.6 Reverse Engineering. Except to the extent (if any) permitted by
applicable law, Distributor shall not decompile, or create
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or attempt to create, by reverse engineering or otherwise, the source code from
the object code supplied under this Agreement.
2.3.7 Future Rights to Acquire Software. Distributor shall not grant to any
Person any option to sub-license the Software that can be exercised after
expiration of the Distribution Term.
2.3.8 Service Bureau. Distributor shall not rent or lease the Software, and
shall not use or distribute the Software to operate a service bureau or similar
service.
Section 3. Distributor's Obligations
3.1 Sales Efforts. Throughout the Distribution Term, Distributor shall use its
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best efforts to solicit orders from responsible and credit-worthy End Users
located in the Territory, for the licensing of the Software and the provision of
End User Maintenance. Without limiting the generality of the foregoing,
throughout the Distribution Term:
3.1.1 Performance Goals. Distributor shall use all commercially reasonable
efforts to: (i) generate Net Revenues in excess of those specified in Table D;
(ii) ensure that sufficient employees of Distributor have attended Primus' sales
training, consulting and technical support certification courses, such that
Distributor employs no fewer than the number of Qualified Sales Persons,
Qualified Consultants and Qualified Technicians specified in Table D throughout
the Distribution Term; and (iii) invest not less than the amount specified in
Table D as marketing funds in the marketing and promotion of the Software
(collectively, the "Performance Goals"). Without limiting Primus' other
remedies, if Distributor fails to meet any of the Performance Goals, then Primus
may, after consultation with Distributor, but in Primus' sole and absolute
discretion, change any exclusive appointment or license grant to a non-exclusive
appointment or license grant.
3.1.2 Marketing Activities. Distributor shall: (i) engage in market
research for the purpose of identifying optimum marketing and distribution
strategies in the Territory; (ii) advise Primus of all such measures as are
necessary for the localization of the Software; (iii) market and promote the
Software in the Territory, using the Trademarks; (iv) coordinate sales, services
and technical support training programs with Primus; (v) establish, train and
maintain a sales and services network with respect to the Software and (vi)
ensure that only Qualified Consultants and Qualified Technicians provide
deployment, technical support and other consulting services related to Primus'
products.
3.1.3 Marketing Practices. Distributor shall avoid deceptive, misleading or
unethical practices that are or might be detrimental to Primus, its licensors,
or the Software, and shall conduct all activities under the Agreement so as to
maintain and support the reputation of Primus and Primus' products and services.
3.1.4 Warranties. Distributor shall not make any representations or
warranties to any Person on behalf of Primus or Primus' licensors, nor assign
any representations or warranties that Primus makes to Distributor under this
Agreement to any Person. Distributor may provide its own warranties to End
Users with respect to the Software, but shall ensure that such warranties (and
any related remedies) do not exceed those provided by Primus to Distributor
under this Agreement.
3.2 End User Maintenance. Throughout the Distribution Term, Distributor or
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Distributor's qualified sub-contractor, at Distributor's sole expense, shall
provide End Users with End User Maintenance.
3.3 Client Services. Throughout the Distribution Term, Distributor or
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Distributor's qualified sub-contractor, at Distributor's sole expense, shall
provide End Users and Evaluators with such Software installation, implementation
and training services as are reasonably necessary to enable the End User or
Evaluator to use the Software successfully. Distributor shall use its
commercially reasonable efforts to obtain metrics from each End User regarding
the End User's use of, and success with the Software, and shall provide such
metrics to Primus. Primus shall provide Distributor with recommendations as to
the scope and nature of such metrics.
3.4 Agreements with Third Parties.
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3.4.1 License, Support and Maintenance, and Evaluation Agreements.
Distributor shall not (i) distribute any Software or Documentation to End Users,
nor (ii) provide any End User with End User Maintenance, except under a valid
License Agreement and Support and Maintenance Agreement, respectively, executed
by the End User. Distributor shall comply with its obligations under all such
Agreements. Distributor shall ensure that all End Users comply with their
obligations under all such Agreements.
3.4.2 Evaluation Agreements. Distributor may order a reasonable number of
copies of the Software and Documentation from Primus, for supervised
demonstration and customer evaluation purposes. Distributor shall not distribute
any Software or Documentation to Evaluators except under a valid Evaluation
Agreement executed by the Evaluator. Distributor shall not be required to pay
Software license fees or Primus Maintenance fees for Software distributed
pursuant to an Evaluation Agreement; provided always that Distributor does not
permit any evaluation to extend beyond thirty (30) days without Primus' prior
written consent, not to be unreasonably withheld. Distributor shall ensure that
all Evaluators comply with their obligations under all such Agreements.
3.4.3 Execution of Agreements. Distributor shall execute agreements with
Sub-Distributors, End Users and Evaluators only in its own name (and not that of
Primus). Distributor shall provide Primus with an accurate summary in English of
all License Agreements, Support and Maintenance Agreements and Sub-Distribution
Agreements executed by End Users or Sub-Distributors promptly after their
execution, containing at a minimum the information required to be entered in
each table of the License Agreement and the Support and Maintenance Agreement.
3.4.4 Modifications to Agreements. Distributor may not modify the License
Agreement or the Support and Maintenance Agreement except as specified in this
Section 3.4.4.
(i) Material Changes. Distributor may make material changes to the
License Agreement or the Support and Maintenance Agreement, with Primus' prior
written approval, not to be unreasonably withheld or delayed. To obtain such
approval, Distributor shall submit an accurate English translation of the
proposed changes to Primus. To the extent that Primus has not responded to
Distributor concerning the proposed changes within five (5) business days, the
submitted changes shall be deemed approved by Primus.
(ii) Immaterial Changes. Distributor may make immaterial changes to
the License Agreement and the Support and Maintenance Agreement at any time
without any obligation to obtain Primus' prior approval; provided always,
however, that Distributor shall defend, indemnify and hold Primus harmless from
and against any and all claims, loss, liability, damages and expense (including
attorneys and other expert's fees) incurred by Primus in consequence of such
changes. Distributor shall notify Primus of such changes when made.
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3.5 Transactions Outside the Territory. If Distributor becomes aware that a
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customer may require any Software outside the Territory, and if the exception to
territorial restriction specified in Section 2.2.4(ii) does not apply, then
Distributor shall promptly notify Primus.
3.6 Reports. Throughout the Distribution Term, Distributor shall: (i) provide
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Primus with the plans, forecasts and reports, in English (collectively,
"Reports"), specified in this Section 3.6; (ii) ensure that each Report contains
the minimum information reasonably requested by Primus; and (iii) use all
commercially reasonable efforts to ensure the accuracy of each Report.
3.6.1 Annual Business Plan. On or before October 15 of each year of the
Distribution Term, Distributor shall provide Primus with an annual business plan
(based on a December 31 year end) for the distribution of the Software and the
provision of End User Maintenance by Distributor and Sub-Distributors in the
Territory.
3.6.2 Monthly Forecasts. On or before the fifth (5th) day of each calendar
month, Distributor shall provide Primus with a quarterly forecast for the
current month and subsequent two (2) months, for the sub-licensing of the
Software and provision of End User Maintenance in the Territory.
3.6.3 Monthly Reports. On or before the fifteenth (15th) day of each
calendar month, Distributor shall provide Primus with a report specifying: (i)
the sub-licensing of the Software and provision of End User Maintenance to End
Users in the Territory for the calendar month last ended: (ii) the status of all
Evaluation Agreements in effect in the Territory for the calendar month last
ended, and the related evaluations by potential customers; and (iii) metrics
regarding use of the Software by End Users.
3.7 Accounting. Throughout the Term and until the sixth (6th) anniversary of
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its termination, Distributor shall keep complete and accurate records clearly
showing: (i) in accordance with Japanese generally accepted accounting
principles and on a consistent basis, all revenues arising out of the
distribution of the Software and the provision of End User Maintenance by
Distributor and the Sub-Distributors; (ii) all amounts payable to Primus under
this Agreement; and (iii) the location, model name, and serial number of all
servers on which the Software distributed by Distributor or any Sub-Distributor
is installed. Such records, and those specified below, are collectively referred
to in this section as "Distribution Records".
3.7.1 Records. For each License Agreement, Support and Maintenance
Agreement and Sub-Distribution Agreement executed, the Distribution Records
shall include at a minimum: (i) the name and address of the End User or Sub-
Distributor; (ii) the dates of shipment; (iii) a copy of each such Agreement,
and each purchase order and invoice, including all amendments and exhibits; (iv)
records of revenues received and receivable in respect of End User Maintenance
and the period to which such End User Maintenance revenues apply; and (v) in the
case of Sub-Distributors only, a copy of each monthly Sub-Distributors' revenue
report to Distributor.
3.7.2 Audit Rights. Within ten (10) days of Primus' written request,
Distributor shall provide accurate copies of the requested Distribution Records
or any requested information contained in the Distribution Records to Primus in
English; provided, however, that Primus may request such information no more
frequently than once per quarter. Upon ten (10) days prior written notice,
Primus may inspect, audit, and copy the Distribution Records and access the
servers on which the Software is installed, at any time during the regular
business hours of the user thereof, but only for the purposes of determining
that (i) Primus has been properly paid all fees to which it is entitled under
this Agreement, and (ii) no infringement of Primus' intellectual property rights
with respect to the Software, the Documentation or the Trademarks has occurred.
Unless an audit discloses a material discrepancy in favor of Distributor or any
of its sub-distributors, Primus may exercise such audit rights no more than once
during any twelve (12) month period. In the event of any understatement of any
Software license fees or Primus Maintenance fees due to Primus, Distributor
shall promptly pay such fees at the Applicable List Price, and Primus will
extend this Agreement to correct any such deficiency. This remedy and Primus'
acceptance of any payment shall be without prejudice to any additional rights or
remedies of Primus under this Agreement or applicable law.
3.7.3 Log Files. Upon written request by Primus, Distributor shall transmit
to Primus a current, complete and correct copy of the log file for each server
on which the Software is installed; provided, however, that unless review of a
log file has indicated additional fees are due to Primus, Primus may not request
a copy of any one log file more frequently than once a year.
3.8 Governmental Compliance.
-----------------------
3.8.1 Regulatory Approvals. Distributor shall obtain and maintain all
licenses, permits, certificates and authorizations required to perform its
obligations under this Agreement, including without limitation those required
for: (i) Distributor's appointment and performance as distributor and licensee
of Primus, and that of any Sub-Distributors; and (ii) the import of the Software
and Documentation into the Territory. All regulatory and other approvals which
are obtained for the Software by Distributor shall be obtained on behalf of
Primus and for Primus' sole benefit. Distributor represents that no regulatory
approvals which have not already been obtained by Primus and/or Distributor are
presently required for licensing and distribution of the Software in the
Territory.
3.8.2 US Export Control. Distributor shall comply with all then applicable
US export control laws and regulations in connection with its distribution of
the Software and Documentation, and the disclosure of any technical information
related thereto.
3.8.3 U.S. Foreign Corrupt Practices Act. Distributor shall comply with the
requirements of the U.S. Foreign Corrupt Practices Act ("FCPA"), and shall not
take nor omit to take, directly or indirectly, any action that might cause
Primus to be in violation of the FCPA.
3.8.4 Foreign Exchange Controls. Distributor shall be solely responsible
for compliance with any foreign exchange controls affecting the Territory.
3.9 Primus' Intellectual Property Rights.
------------------------------------
3.9.1 Primus' Ownership. Distributor shall not represent to any Person that
it has any ownership interest in the Software, Documentation, Trademarks or
Primus' Confidential Information. Distributor acknowledges that no action by it
or on its behalf shall create in Distributor's favor any right, title or
interest in or to the Software, Documentation, Trademarks, and/or Primus'
Confidential Information, or in any registrations, filings, renewal or
enforcement rights of Primus pertaining to them.
3.9.2 Notice of Third Party Infringement. Distributor shall promptly advise
Primus of any suspected or actual infringements of Primus' intellectual property
rights of which Distributor becomes aware. Distributor shall cooperate with and
assist Primus, at Primus' reasonable expense, in any action undertaken by Primus
against any suspected infringement by third parties.
Page 6 of 21
3.9.3 Notice by Primus. Distributor shall not market, display, reproduce,
distribute, sub-license or use the Software or Documentation for a period of
three (3) months commencing on Primus' notice to Distributor that Distributor
should cease use or distribution of the Software due to an infringement claim.
3.9.4 Intellectual Property Rights Registration. Distributor shall, at
Primus' reasonable expense, provide Primus with all assistance reasonably
required by Primus to register Primus throughout the Territory as the owner of
Primus' intellectual property rights with respect to the Software and the
Documentation, including without limitation the Trademarks.
3.10 Costs and Expenses. Distributor shall bear and be liable for all costs and
------------------
expenses that it initiates or incurs in fulfilling its obligations under this
Agreement, except as otherwise expressly specified in a written agreement
executed by both parties.
Section 4. Primus' Obligations
4.1 Training. Following execution of this Agreement, and at such other times
--------
during the Distribution Term as Primus reasonably determines (for example, upon
Primus' release of a significant Update), Primus shall provide the training to
Distributor and Sub-Distributors as specified below, at Primus' then current
rates for such services at locations mutually acceptable to both parties, or, to
the extent indicated in Table C, at the rates, discounts and locations specified
in Table C:
4.1.1 Sales Training. Primus shall provide such sales and pre-sales
information and training as Primus reasonably determines necessary, after
consultation with Distributor, for the promotion, marketing and demonstration of
the Software by Distributor.
4.1.2 Certification Training. Primus shall provide such product
certification training (covering client services and technical support skills
for the Software) as Primus reasonably determines necessary, after consultation
with Distributor.
4.2 Updates. During the Distribution Term, Primus shall (i) provide Distributor
-------
with reasonable prior notice concerning the release of all Updates, and (ii)
provide Distributor with Updates if and when they are generally available for
commercial release in the Territory. Distributor shall not entitle any End User
to any Updates until the Update is generally available for commercial release.
4.3 Secondline Support. During the Distribution Term, Primus shall provide
------------------
Distributor with Secondline Support. Primus shall have no obligation to directly
support End Users or Sub-Distributors. Primus need not provide any other
technical support except on a basis acceptable to Primus.
4.4 Marketing Materials. During the Distribution Term, Primus shall provide
-------------------
Distributor with initial copies of Primus' marketing materials and price lists
applicable to the promotion, marketing and distribution of the Software in the
Territory, together with any updates created by Primus. Distributor shall be
responsible for the costs of reproducing any such materials.
4.5 Referrals. During the Distribution Term, to the extent that Distributor has
---------
exclusive rights as Primus' distributor of the Software, Primus shall forward to
Distributor any inquiry or order with respect to the Software that Primus has
received, and that originates from the Territory.
Section 5. Other Obligations Of The Parties
5.1 Tax Structuring. Throughout the Distribution Term, Primus and Distributor
---------------
shall consult and work together to determine the most mutually tax-efficient
structure for distribution of the Software within the Territory, and for payment
of all fees to Primus.
5.2 No Authority. Neither of the parties shall have any authority to bind or
------------
act for, or assume any obligation or responsibility on behalf of, the other
party, except as such authority may be specifically and expressly delegated in
this Agreement. The parties hereto do not intend, and this Agreement shall not
be deemed to create a partnership, joint venture, franchise, employment or other
relationship between them.
5.3 Confidential Information. Each of the parties shall comply with the
------------------------
provisions of the Confidential Information Agreement.
Section 6. Ordering and Shipment
6.1 Order Submission. Distributor shall order Software and Documentation from
----------------
Primus by delivering to Primus: (i) a Distributor purchase order, substantially
in the form attached as Exhibit A; and (ii) a copy of a valid End User purchase
order issued to Distributor or any Sub-Distributor; (iii) if applicable, any
Sub-Distributor purchase order; and (iv) the License Agreement and Maintenance
Agreement executed by the End-User. Sub-Distributors and End Users may not order
Software or Documentation directly from Primus.
6.2 Order Acceptance. Primus shall accept all reasonable orders from
----------------
Distributor for Software and Documentation that are in accordance with the terms
of this Agreement. Distributor may not cancel or amend an order once it has been
received by Primus without Primus' prior written consent.
6.3 Delivery. Primus shall deliver orders of Software and Documentation
--------
accepted by Primus to Distributor FCA Seattle. The trade term "FCA" shall be
interpreted in accordance with "Incoterms 1990", as promulgated by the
International Chamber of Commerce.
6.4 Customs and Taxes. Distributor shall be responsible for clearing Software
-----------------
and Documentation through all customs, and shall pay any and all taxes or duties
imposed by any governmental authority on (i) the export or import of the
Software or Documentation, and (ii) the licensing of the Software within the
Territory.
Section 7. Fees and Payments
Except to the extent expressly stated otherwise in this Agreement, Distributor
shall pay Primus royalties as specified in this Section 7 for all Software and
Documentation distributed under this Agreement, and shall pay Primus fees for
all Primus Maintenance provided under this Agreement, and for all client
services provided by Primus to Distributor (including, for example, but without
limitation, consulting and educational services).
7.1 Software Royalties. Subject to Section 7.1.1 below, on or before the
------------------
thirtieth (30th) day following the end of each calendar quarter (based on a
December 31 year end), Distributor shall pay Primus running royalties equal to
the "Software Royalty Percentage" of the "Gross Software Revenue" that was
"Realized" by Distributor during such quarter.
"Software Royalty Percentage" means the software royalty percentage specified in
Table B.
"Gross Software Revenue" means any and all royalties, sublicensing fees and
other revenues Realized by Distributor in connection with the distribution or
sub-licensing of the Software, together with any damages, interest thereon, and
similar monetary awards (other than awards of attorneys' fees) paid by third
parties to Distributor or any Affiliate of Distributor in connection with
infringement of any intellectual property rights associated with any part of the
Software.
Page 7 of 21
"Realized" is defined in Section 7.3.1 below.
7.1.1 Minimum Software Royalties. With respect to each distribution of the
Software under this Agreement, Distributor shall pay Primus minimum royalties
equal to the Software Royalty Percentage of "Distributor's Resale Price."
"Distributor's Resale Price" means the list price fees applicable to the
Territory for the sub-licensing of Software to Sub-Distributors. The
Distributor's Resale Price for the initial Distribution Term is specified in
Table ▇. ▇▇▇▇▇▇ may modify the Distributor's Resale Price for each subsequent
Distribution Term upon not less than thirty (30) days prior written notice to
Distributor. Primus may determine the Distributor's Resale Price in its sole
discretion, but only after consultation with Distributor.
7.2 Primus Maintenance Fees. Subject to Section 7.2.1, on or before the
-----------------------
thirtieth (30th) day following the end of each calendar quarter (based on a
December 31 year end), Distributor shall pay Primus fees for Primus Maintenance
equal to the "Primus Maintenance Fee Percentage" of the "Gross Maintenance
Revenue" Realized by Distributor during such quarter.
"Primus Maintenance Fee Percentage" means the maintenance fee percentage
specified in Table B.
"Gross Maintenance Revenue" means any and all fees and other revenues Realized
by Distributor in connection with the provision of technical support and Updates
to Sub-Distributors, End Users, and any other third parties.
7.2.1 Minimum Maintenance Fees. Distributor shall pay Primus minimum fees
for Primus Maintenance. For purposes of determining the minimum fees, the Gross
Maintenance Revenue Realized by Distributor during the relevant quarter shall be
deemed to be [*] percent ([*]%) of the Distributor's Resale Price for the
Software with respect to which Distributor Realizes Gross Software Revenue
during the quarter.
7.3 Provisions Relating to Gross Revenue. For the purposes of this Section 7,
------------------------------------
"Gross Revenue" means Gross Software Revenue and Gross Maintenance Revenue.
7.3.1 Realization of Gross Revenue. Gross Revenue will be deemed to be
"Realized" on the first to occur of (i) the date on which any royalties,
sublicensing fees, End-User Maintenance fees or other revenues are paid to
Distributor; and (ii) the ninetieth (90th) day following the execution of the
applicable License Agreement or Support and Maintenance Agreement by an End-User
(or any amendment thereto).
7.3.2 Gross Revenue from Bundled or Promotional Transactions. The Gross
Revenue in a unit-priced transaction (e.g., bundled transactions, discount or
promotional offers, and the like) involving both (i) the Software or End User
Maintenance (or both), and (ii) one or more other products or services provided
by Distributor, will be the greater of: (i) Distributor's stand-alone price
associated with the Software or the End User Maintenance in transactions
involving the Software or End User Maintenance alone; and (ii) the actual
revenue realized by Distributor in the unit-priced transaction, prorated between
the Software or End User Maintenance (or both) and such other products and
services in accordance with their respective stand-alone prices.
7.3.3 Exclusions from Gross Revenue. Gross Revenue does not include (i)
revenues realized by Distributor in connection with the licensing or support and
maintenance of separately identified and priced software that is developed,
licensed, or otherwise acquired by Distributor which Distributor may combine for
distribution purposes with all or part of the Software; or (ii) amounts received
by Distributor that are attributable to separately itemized and billed shipping
costs and insurance or to sales taxes or similar taxes.
7.4 No Charge for Internal Use and Evaluations. Distributor shall not be
------------------------------------------
required to pay Primus Software royalties or fees for Primus Maintenance with
respect to: (i) Software that Distributor uses internally pursuant to the
internal use license granted under Section 2.2.4; and (ii) Software used by
Evaluators; provided always, however, that Distributor does not permit any
evaluation to extend beyond thirty (30) days without Primus' prior written
consent, not to be unreasonably withheld.
7.5 Splits. If Primus sub-licenses any Software within the Territory as part of
------
a transaction involving an End-User whose head office is located outside the
Territory, or if Licensee sub-licenses any Software outside the Territory as
part of a transaction involving an End User whose head office is located within
the Territory, then Primus and Licensee shall split equally between them the
Software license fees and support and maintenance fees payable by the End User.
In the event of any multiple-territory transaction where Distributor and Primus'
other distributors, agents or representatives cannot mutually resolve their
respective shares in the compensation arising from the customer order, then
Primus may, in its sole and absolute discretion, allocate the Software license
fees, End User Maintenance fees, and the responsibility for providing End User
Maintenance among them (less, in the case of Distributor, any compensation
payable to Primus under this Agreement).
7.4 Referrals. If a customer in the Territory prefers to sub-license Software
---------
or purchase services directly from Primus for use in the Territory, and if
Distributor's appointment with respect to such Software is non-exclusive, then
Distributor shall refer the customer to Primus. If the customer sub-licenses
Software from Primus as a direct result of Distributor's activities, and within
six (6) months of Distributor's last substantial contact with the customer
concerning the Software, then Primus shall pay Distributor a referral fee equal
to the "Referral Percentage" of the software license fees recognized in
accordance with US generally accepted accounting principles by Primus from such
customer in the first year of the sub-license term. "Referral Percentage" means
the percentage amount specified in Table E.
7.5 Applicable List Price; Distributor's Discount. The Applicable List Price
---------------------------------------------
contains a list of Software license and End User Maintenance fees recommended by
Primus for use by Distributor in distributing the Software and providing End
User Maintenance in the Territory. If Distributor wishes to sub-license Software
or provide End User Maintenance at less than the Applicable List Price, or if
Distributor wants to provide any Person with an option to acquire rights to the
Software or End User Maintenance at less than the Applicable List Price, then
Distributor shall first provide Primus with not less than five (5) business days
prior written notice. Notwithstanding any of the foregoing, Distributor shall be
under no obligation to sub-license the Software or provide End User Maintenance
to End Users at the Applicable List Price, but may price the Software and End
User Maintenance in its reasonable discretion.
7.6 Payment Terms. Unless another date is specified in this Agreement, all
-------------
payments by Distributor to Primus shall be due within thirty (30) days of the
date of Primus' invoice. Distributor shall make all payments in United States
currency, in readily available funds. Overdue payments shall accrue interest at
the lesser of US prime rate on the date of the invoice plus five percent (5%)
per annum, or the maximum rate permitted by applicable law. If any sums require
[*] = omitted, confidential material, which material has been separately filed
with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 8 of 21
conversion into US currency, then the conversion rate shall be that published in
the Wall Street Journal for the fifteenth day of the month in which Primus
delivers its invoice to Distributor or, if no rate is published for the
fifteenth day, the next day on which the rate is published.
7.7 Taxes; Withholding. As between Distributor and Primus, Distributor shall be
------------------
solely responsible for any applicable sales, use, or any value added or similar
taxes (collectively, "Sales Taxes") payable under, or arising out of or in
connection with this Agreement, other than taxes imposed in the United States
based upon Primus' income. Any prices, fee schedules or invoices provided by
Primus are exclusive of any Sales Taxes, unless specifically stated otherwise.
Upon request by Primus, Distributor shall promptly furnish Primus with copies of
tax receipts and other documents evidencing the withholding and payment of any
local taxes applicable to Primus, so that Primus may file for a tax credit.
Distributor shall cooperate with Primus in taking all such steps and filing all
such documents as Primus reasonably requests to minimize any such withholding.
Section 8. Trademark Matters
8.1 License to Use Trademarks. Primus hereby grants Distributor a non-exclusive
-------------------------
license, with right to sub-license to Sub-Distributors, to use the Trademarks in
the Territory during the Distribution Term, solely in connection with: (i) the
promotion, marketing, licensing, and distribution of the Software; and (ii) the
provision of End User Maintenance and of implementation and training services
related to the Software. Primus reserves all other rights to the Trademarks.
8.2 Proprietary Notices; Use of Trademarks; Approval of Promotional Materials.
-------------------------------------------------------------------------
Distributor shall not remove, obscure or alter any notice of copyright, trade
secret, trademark or other proprietary right appearing in or on any Software or
Documentation or any related packaging and shall ensure that each copy of all or
any portion of the Software or Documentation made by Distributor includes such
notices. Distributor shall clearly indicate the ownership of the Trademarks by
Primus whenever it uses the Trademarks. Distributor shall comply with the
trademark usage guidelines and procedures established by Primus from time to
time. Upon request by Primus, Distributor shall provide Primus with an
opportunity to inspect and approve any packaging, descriptive or promotional
materials pertaining to the Software and Documentation or otherwise containing
references to the Trademarks. Distributor may appropriately use its own
trademarks and trade names in connection with distributing the Software, subject
to Primus' prior written approval. Any goodwill arising out of use of the
Trademarks by Distributor or any Sub-Distributor shall inure solely to the
benefit of Primus.
8.3 No Infringement. Distributor shall not at any time adopt, use or register
---------------
any identical or similar ▇▇▇▇ or symbol or combination thereof which infringes
any of the Trademarks. If Distributor has already done or attempted to do so,
directly or indirectly, Distributor shall immediately assign all rights to such
▇▇▇▇ or symbol to Primus. In no event shall Distributor use the name "Primus" or
any of the Trademarks (whether or not registered) except as expressly permitted
under this Agreement.
Section 9. Warranties
9.1 Distributor's Warranties. Distributor represents and warrants to Primus as
------------------------
follows:
9.1.1 Authority. The execution and delivery of this Agreement by
Distributor and the performance of the obligations contemplated hereby have been
duly and validly authorized by all necessary legal action on its part, and this
Agreement is legal, valid and binding against Distributor in accordance with its
terms.
9.1.2 No Default. The execution, delivery and performance of this Agreement
by Distributor does not and shall not conflict with any obligation of
Distributor under any agreement or instrument to which Distributor is a party or
by which it is bound.
9.1.3 Adequate Resources. Distributor has sufficient resources and
experience to properly perform its obligations under this Agreement, and shall
commit such resources to its obligations throughout the Term. None of
Distributor's executive officers have any actual knowledge of any existing or
forthcoming event that may materially adversely affect Distributor's ability or
willingness to comply with its obligations under this Agreement.
9.2 Primus' Warranties. Primus represents and warrants to Distributor as
------------------
follows:
9.2.1 Organization and Authority. The execution and delivery of this
--------------------------
Agreement by Primus and the performance of the obligations of Primus
contemplated hereby have been duly and validly authorized by all necessary legal
action on its part, and this Agreement is legal, valid and binding against
Primus in accordance with its terms.
9.2.2 No Default. The execution, delivery and performance of this Agreement
by Primus does not and shall not conflict with any obligation of Primus under
any agreement or instrument to which Primus is a party or by which it is bound.
9.3 Primus Software Warranties.
--------------------------
9.3.1 Media. Primus warrants to Distributor that the media on which the
Primus Software is delivered by Primus will be free from defects in materials
and workmanship for a period of ninety (90) days beginning on the date of
shipment by Primus.
9.3.2 Performance; Year 2000. Primus warrants to Distributor that the
Primus Software as delivered by Primus: (i) will perform in all material
respects in accordance with the applicable specifications set forth in the
applicable Documentation for a period of ninety (90) days beginning on the date
of shipment by Primus; and (ii) is "Year 2000 Compliant." Year 2000 Compliant
for the purposes of this Section 9.3.2 means that the Primus Software, when used
with accurate date data and in accordance with its associated documentation, is
capable of properly processing date data from, into and between the twentieth
and twenty-first centuries, including the years 1999, 2000 and leap years,
provided that all other products (e.g., hardware, software and firm-▇▇▇▇) used
with it properly exchange date data with the Primus Soft-▇▇▇▇.
9.3.3 Infringement. Primus warrants to Distributor that use in accordance
with this Agreement of the Primus Software as delivered by does not infringe:
(i) to the best of Primus' knowledge, any valid copyright in any country in the
Territory, or (ii) to Primus' actual knowledge, any patent or trademark existing
under the laws of any country in the Territory.
9.3.4 Upstream Supplier Software Warranties. Primus warrants to Distributor
that the Upstream Supplier Software, as delivered by Primus to Distributor, will
conform to the warranties specified in Schedule 5.
9.3.5 Bugs and Abatement. Without limiting the foregoing, Primus does not
warrant that the Software is free from all bugs, errors, or omissions. The
warranties in this Section 9.3 shall automatically ▇▇▇▇▇ to the extent that the
Software has been damaged, abused, modified, or combined with other software by
Page 9 of 21
Persons other than Primus' authorized employees or representatives, or other
than at Primus' express direction.
9.3.6 Performance Remedy. If any Software fails to comply with the
warranties set forth in Sections 9.3.1 and 9.3.2, and paragraphs A.1, A.2 , B.1
and B.2 of Schedule 5, and if Distributor provides written notice of the non-
compliance to Primus within five (5) business days of expiration of the warranty
period then, except as otherwise specified in Schedule 5, Primus will either
repair or, at its option, replace any non-complying media or Software. If Primus
is unable to correct the noncompliance within sixty (60) days of receipt of such
written notice from Distributor then, except as otherwise specified in Schedule
5, Primus shall, as Distributor's sole remedy, (i), with respect to non-
compliant Initial Software, promptly refund all of the Software license fees
paid by Distributor for such Software and terminate the Distribution Term with
respect to the non-compliant Software, and (ii), with respect to non-compliant
New Software, promptly refund all of the most recent annual support and
maintenance fees paid by Distributor to Primus and attributable to the
development of such New Software, in each case (i) and (ii) in full and final
satisfaction of all and any of Distributor's claims arising out of media or
Software failure.
9.3.7 Infringement Remedy. Primus shall defend and indemnify Distributor
against any proceeding based upon any failure to satisfy the warranties set
forth in Section 9.3.3 and paragraphs A.3 and B.3 of Schedule 5, as
Distributor's sole remedy, provided that: (i) Distributor shall notify Primus in
writing of any claim of infringement promptly after it has been made; (ii)
Primus or its licensors shall have exclusive control over the defense and
settlement of the proceeding; (iii) Distributor shall make no admission of
liability nor enter into any settlement without the prior written agreement of
Primus; (iv) Distributor shall provide such assistance in defense of the
proceeding as Primus or its licensors may reasonably request, at Primus'
reasonable expense; and (v) Distributor shall comply with any court order or
settlement made in connection with the proceeding. If use of the Software is, or
in Primus' reasonable opinion is likely to become, the subject of a claim of
infringement of any intellectual property right of any third party, then Primus
may: (a) procure the continuing right of Distributor to use the Software; (b)
replace or modify the Software in a functionally equivalent manner so that it no
longer infringes; or (c) except as otherwise specified in Schedule 5, terminate
the Distribution Term with respect to the Software subject to the infringement
claim and refund to Distributor an amount equal to the depreciated license fees
paid by Distributor for such Software (calculated on a straight line basis over
a five (5) year life).
9.3.8 Warranties Repeated For Replacements and New Software. The warranties
and other provisions of this Section 9.3 shall be automatically repeated for any
modifications of the Software delivered to remedy any non-compliance with the
warranties under Sections 9.3.1 and 9.3.2 and for any New Software, in each case
upon shipment of the same by Primus to Distributor.
9.3.9 Disclaimer Of Implied Warranties. Primus makes no representation or
warranty in connection with the Software, except as set forth in Sections 9.3.1
9.3.4. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 9.3, AND EXCEPT FOR
DEATH OR BODILY INJURY THAT RESULTS FROM PRIMUS' PROVEN WILLFUL MISCONDUCT OR
NEGLIGENCE, PRIMUS DISCLAIMS AND DISTRIBUTOR WAIVES AND RELEASES ALL RIGHTS AND
REMEDIES OF DISTRIBUTOR, AND ALL WARRANTIES, OBLIGATIONS, AND LIABILITIES OF
PRIMUS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY
BUG, ERROR, OMISSION, DEFECT, DEFICIENCY, OR NONCONFORMITY IN ANY SOFTWARE OR
OTHER ITEMS FURNISHED UNDER THIS AGREEMENT OR THE SUPPORT AND MAINTENANCE
AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY: (A) IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) IMPLIED WARRANTY
ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; (C)
CLAIM OF INFRINGEMENT; AND (D) STATUTORY REMEDIES.
Section 10. Term and Termination
10.1 Term. The term of this Agreement shall continue indefinitely unless
----
otherwise agreed in a written instrument executed by both parties. Expiration of
the Term or of the Distribution Term shall not, in and of themselves, cause the
termination of License Agreements with End-Users.
10.2 Distribution Term. Unless sooner terminated pursuant to Sections 10.2.1
-----------------
and 10.2.2 below, or as provided elsewhere in this Agreement, the Distribution
Term shall expire as specified in Table A. The expiring Distribution Term shall
automatically renew for succeeding one calendar year periods unless: (i)
Distributor has not met or exceeded its Performance Goals; or (ii) either party
has notified the other not less than forty-five (45) days prior to expiration of
the then current Distribution Term of its desire not to renew the Distribution
Term.
10.2.1 Earlier Termination by Either Party. Either party may immediately
terminate the Distribution Term at any time if: (i) any proceedings are
commenced by, for or against the other party under any bankruptcy, insolvency or
debtor relief law and are not dismissed within thirty (30) days; or (ii) the
other party has materially breached its obligations under this Agreement and has
not cured such failure within thirty (30) days of notification of the breach by
the non-breaching party.
10.2.2 Earlier Termination by Primus. Primus may immediately terminate the
Distribution Term at any time if: (i) Distributor has engaged in the development
or distribution of any product which competes with the Software; (ii)
Distributor has challenged the validity or exclusivity of any of the
intellectual property rights of Primus or its licensors (including without
limitation the Trademarks and/or Primus' Confidential Information); or (iii)
Distributor has failed to make a payment when due under Section 7 above, and has
not cured such failure within ten (10) business days following written notice
from Primus.
10.3 Local Termination Liabilities. Primus shall have no liability for early
-----------------------------
termination of the Distribution Term or of the Term in accordance with the
provisions of this Agreement, including without limitation any liability for
goodwill that has been established, or for any damages on account of prospective
profits or anticipated sales. Distributor waives, and shall ensure that each
Sub-Distributor waives any and all rights, claims and causes of action against
Primus arising out of any such termination.
Section 11. Post Termination Obligations
Upon any termination of the Distribution Term:
11.1 Distributorship. Distributor shall immediately: (i) pay Primus any sums
---------------
that are outstanding under this Agreement, the due dates of which shall be
automatically accelerated to the date of termination; (ii) discontinue any
representations that it is an authorized distributor of the Software or of
Primus; and (iii) except to the extent required by Distributor to provide End
User Maintenance to End Users,
Page 10 of 21
permanently delete all copies of any of the Software from the hard drives of all
computers in Distributor's possession or under its control, destroy all other
media in Distributor's possession or under its control on which any of the
Software is stored, certify the same in writing to Primus, and return to Primus
all copies of the Documentation and Primus' Confidential Information then in
Distributor's possession or under its control.
11.2 Inventory. Primus shall refund to Distributor the fees paid by Distributor
---------
for any Documentation and any related packaging that Distributor returns to
Primus within thirty (30) days of termination of the Distribution Term or this
Agreement, but only to the extent that (i) the Documentation and related
packaging is in the same condition as it was when shipped to Distributor, and
(ii) the Documentation and related packaging is for the then current versions of
the applicable Software.
11.3 Interim Orders. Primus may (i) reject all or part of any orders received
--------------
from Distributor after notice but prior to the effective date of termination, or
(ii) require Distributor's performance of any outstanding orders,
notwithstanding the fact that delivery dates for such orders may extend beyond
the effective date of termination.
11.4 Ongoing Installation Programs. With Primus' prior written consent, not to
-----------------------------
be unreasonably withheld or delayed, Distributor shall complete all
implementation and training programs which, prior to receiving notice of
termination, it had agreed to provide to End Users.
11.5 Assignment of Agreements. Distributor shall offer to assign to Primus or
------------------------
Primus' designee all License Agreements, Evaluation Agreements, Support and
Maintenance Agreements and Sub-Distribution Agreements entered into by
Distributor or any Sub-Distributor. To the extent that Primus or its designee
accept such assignment:
11.5.1 Primus' Assumption of Obligations. Primus or its designee shall
assume Distributor's obligations: (i) to End Users under License Agreements and
Support and Maintenance Agreements, (ii) to Evaluators under Evaluation
Agreements, and (iii) to Sub-Distributors under Sub-Distributor Agreements.
11.5.2 End User Installment Payments. Primus shall pay to Distributor all
fees paid to Primus under the assigned agreements by the End User, Evaluator or
Sub-Distributor (the "Pre-Assignment Fees"), but only to the extent that
Distributor has already paid Primus the fees due under this Agreement for the
Software or support and maintenance to which the Pre-Assignment Fees relate.
11.5.3 End User Prepayments. Distributor shall pay to Primus or Primus'
designee the amount representing the unused portion of all End User Maintenance
fees that have been prepaid by End Users as of the assignment date, less Primus
Maintenance fees for such unused portions that Distributor has already paid to
Primus. Unused portions of support and maintenance fees shall be determined by
multiplying the total fees for the relevant term (the "Relevant Term") by a
fraction, the numerator of which is the number of days of the Relevant Term
remaining, and the denominator of which is the total number of days of the
Relevant Term.
Section 12. Indemnification
Distributor shall defend, indemnify and hold Primus harmless from and against
any loss, liability, damages or expense (including attorneys' and other experts'
fees) incurred by Primus and arising out of: (i) any warranty, representation,
indemnity, guarantee or similar assurance, and any related remedy, provided by
Distributor or any Sub-Distributor with respect to the Software, the
Documentation or the End User Maintenance to the extent that any of them exceed
the warranties and remedies provided by Primus to Distributor under Section 9.3
of this Agreement; (ii) any omission or inaccuracy in Distributor's or Sub-
Distributor's verbal or written statements, advertisements and promotional
materials that relate to Primus, the Software, the Documentation or the End User
Maintenance; or (iii) any failure by Distributor or any Sub-Distributor to
comply promptly with their obligations under the provisions of this Agreement
headed "Governmental Compliance" (Section 3.8) and "Taxes; Withholding."
(Section 7.8).
Section 13. Dispute Resolution and Other Provisions; Schedules
13.1 Dispute Resolution and Other Provisions. Dispute resolution and other
---------------------------------------
provisions are contained in Schedule 6.
13.2 Schedules. Each of the Schedules and Exhibits listed below shall be
---------
incorporated into and shall for all purposes be deemed a part of this Agreement:
Schedule 1 - Confidential Information
Agreement
Schedule 2 - End User Agreement Forms
Schedule 3 - Secondline Support
Schedule 4 - Initial Sub-Distributors
Schedule 5 - Upstream Supplier Warranties
Schedule 6 - Dispute Resolution and Other
Provisions
Schedule 7 - Seagate Products License
Restrictions
Exhibit A - Distributor's Form of
Purchase Order
Page 11 of 21
PRIMUS KNOWLEDGE SOLUTIONS, INC.
Software Marketing and Distribution Agreement
Schedule 1
Confidential Information Agreement
Insert Current NDA
Primus Contract ID: NDA _________________
PRIMUS KNOWLEDGE SOLUTIONS, INC.
Bilateral Non-Disclosure Agreement
This Bilateral Non-Disclosure Agreement ("Agreement") is made between Primus
Knowledge Solutions, Inc. ("Primus"), ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (fax: (▇▇▇) ▇▇▇-▇▇▇▇), and the entity identified below,
including the legal entity of which it is part (collectively, the "Company").
Company Name: __________________________________
Company Address: _______________________________
_______________________________
Fax No.: _______________________________
Primus and the Company (collectively referred to as the "Parties" and
individually referred to as a "Party") have determined to establish terms
governing the use and protection of "Confidential Information" (as defined
below) that one Party (the "Owner") may disclose to the other Party (the
"Recipient"). Therefore, for good and valuable consideration, the receipt and
sufficiency of which they each acknowledge, the Parties each agree as specified
in the Terms and Conditions below.
EXECUTED as of the date set forth below Primus' signature (the "Effective
Date"):
Company Primus Knowledge Solutions, Inc.
Signature:__________________________ By: _____________________________
(Print name)________________________ _____________________________
Title:______________________________ Its:_____________________________
Dated: _____________________________ Dated: __________________________
Terms and Conditions
Section 1. Definitions.
1.1 "Confidential Information" means any and all information disclosed by
Owner that is identified as "confidential" or "proprietary," either by legend on
written or electronically stored material, or in advance if disclosed verbally.
Confidential Information includes, without limitation, research and development,
know-how, inventions, trade secrets, software, and market analysis, research,
strategies, projections and forecasts. Confidential Information also includes,
without limitation, information disclosed by Owner with permission from a third
party, and combinations of or with publicly known information where the nature
of the combination is not publicly known.
1.1.1 Exceptions. Confidential Information does not include information
which:
(a) was publicly known at the time of Owner's communication thereof to
Recipient, or which subsequently becomes publicly known through no fault of
Recipient;
(b) was in the possession of Recipient prior to its being communicated to
Recipient by Owner;
(c) becomes available to Recipient on a non-confidential basis from a source
other than Owner, provided that such source is not bound by any obligation
of confidentiality to Owner with respect to such information; or
(d) was independently developed by Recipient without reference to the
Confidential Information communicated by Owner.
Section 2. Covenant Not to Disclose.
Recipient shall not use Owner's Confidential Information except for purposes of
evaluating, maintaining and furthering a business relationship with Owner.
Recipient shall maintain in confidence the Confidential Information received
from Owner and shall not directly or indirectly disclose such information to any
person or entity except Recipient's employees and consultants, and then only on
a need-to-know basis. Recipient shall ensure that such employees and
consultants are bound by a written agreement to protect the received
Confidential Information from unauthorized use and disclosure. Recipient shall
protect Owner's Confidential Information from disclosure to others using the
same degree of care that it uses to protect its own most highly confidential
information, but in no event less than a reasonable standard of care. Recipient
shall not make or distribute any more copies or summaries of Owner's
Confidential Information than are necessary to evaluate, maintain and further a
business relationship between the Parties, and shall ensure that all such copies
or summaries are marked as confidential and the property of Owner.
Section 3. No Obligation Of Disclosure.
Neither Party shall have any obligation to disclose its Confidential Information
to the other. Either Party may, at any time, cease providing its Confidential
Information to the other Party, and may require the return of Confidential
Information previously disclosed by written notice.
Section 4. Disclosure Required By Law.
If any applicable law, regulation or court order requires Recipient to disclose
any of Owner's Confidential Information, Recipient shall promptly notify Owner
in writing prior to making any such disclosure, in order to facilitate Owner's
efforts to protect its Confidential Information. In such circumstances,
Recipient shall cooperate with
Page 12 of 34
Owner, at Owner's reasonable expense, in seeking and obtaining protection for
Owner's Confidential Information.
Section 5. Title.
Owner shall retain all ownership rights in and to the Confidential Information
it discloses to Recipient. No licenses or rights under any patent, trademark,
copyright, trade secret or other intellectual property right shall be granted or
implied under this Agreement. Neither Party shall be obligated under this
Agreement to acquire from or provide to the other Party any service or product.
Section 6. Termination.
Either Party may terminate this Agreement at any time without cause upon written
notice to the other party. All obligations of confidentiality shall survive such
termination. Upon termination of this Agreement, Recipient shall promptly return
all of Owner's Confidential Information provided to it in tangible form,
together with any and all copies and/or summaries, and shall destroy all of
Owner's Confidential Information that is electronically stored; provided,
however, that each Party's legal department may retain one copy of the
Confidential Information in its file solely for the purpose of identifying
information designated as "Confidential Information."
Section 7. Specific Performance.
The Parties acknowledge that Confidential Information is unique and valuable,
and that Owner will have no adequate remedy at law if Recipient does not comply
with its obligations under this Agreement. Therefore, Owner shall have the
right, in addition to any other rights it may have, to obtain in any court of
competent jurisdiction temporary, preliminary and permanent injunctive relief to
restrain any breach, threatened breach, or otherwise to specifically enforce any
obligations of Recipient if Recipient fails to perform any of its obligations
under this Agreement.
Section 8. Miscellaneous.
8.1. Dispute Resolution.
8.1.1 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the internal laws of the State of Washington, and, where such
laws are preempted by the laws of the United States, by the internal laws of the
United States, in each case without regard to conflicts of laws principles.
8.1.2 Arbitration. In the event of any controversy or claim arising out of
or relating to this Agreement or the breach or interpretation thereof, the
parties shall, upon five days notice from either one to the other, submit
themselves and the subject-matter of the dispute to arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association by
a single, disinterested arbitrator appointed in accordance with such Rules. The
determination of the arbitrator shall be final, conclusive and binding.
Judgment upon the award rendered may be entered in any court of any state or
country having jurisdiction. Each party shall ensure that any arbitration is
conducted as speedily as is reasonably possible, and that all and any
information disclosed during or in connection with the arbitration is treated by
each party with the strictest confidence. Any arbitration conducted under or in
connection with this Agreement shall take place in Seattle, Washington at a time
and location to be determined by the arbitrator.
8.1.3 Interim and Permanent Relief. Upon the application of either party to
this Agreement, and whether or not an arbitration has yet been initiated, all
courts having jurisdiction over one or more of the parties are authorized to:
(i) issue and enforce in any lawful manner such temporary restraining orders,
preliminary injunctions and other interim measures of relief as may be necessary
to prevent harm to a party's interests or as otherwise may be appropriate
pending the conclusion of arbitration proceedings pursuant to this Agreement;
and (ii) enter and enforce in any lawful manner such judgments for permanent
equitable relief as may be necessary to prevent harm to a party's interests or
as otherwise may be appropriate following the issuance of arbitral awards
pursuant to this Agreement.
8.1.4 Legal Expenses. If any proceeding is brought by either party to
enforce or interpret any provision of this Agreement, the substantially
prevailing party in such proceeding shall be entitled to recover, in addition to
all other relief arising out of this Agreement, such party's reasonable
attorneys' and other experts' fees and expenses.
8.2 Waiver; Severability; Invalidity. No waiver of or with respect to any
provision of this Agreement, nor consent by a party to the breach of or
departure from any provision of this Agreement, shall in any event be binding on
or effective against such party unless it be in writing and signed by such
party, and then such waiver shall be effective only in the specific instance and
for the purpose for which given. If any provision of this Agreement is held to
be invalid, such invalidity shall not render invalid the remainder of this
Agreement or the remainder of which such invalid provision is a part. If any
provision of this Agreement is so broad as to be held unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
8.3 Notices. Any notice or other communication under this Agreement given
by either party to the other party shall be deemed to be properly given if given
in writing and delivered (i) by nationally recognized private courier (e.g.,
Federal Express) or (ii) by mail (return receipt requested), properly addressed
and stamped with the required postage, to the recipient at the address
identified in its signature block to this Agreement. Either party may from time
to time change its address by giving the other party notice of the change in
accordance with this Section.
8.4 Entire Agreement; Amendments. This Agreement constitutes and embodies
the entire agreement and understanding between the parties with respect to the
subject matter hereof and supersedes all prior or contemporaneous written,
electronic or oral communications, agreements or understandings between the
parties with respect thereto. This Agreement may not be modified or amended
except by a written instrument executed by the parties.
Page 13 of 34
PRIMUS KNOWLEDGE SOLUTIONS, INC.
Software Marketing and Distribution Agreement
Schedule 2
End User Agreement Forms
Insert Primus' current end user forms for resellers
Terms offered are valid only through
--------------
PRIMUS KNOWLEDGE SOLUTIONS KK
Software License Agreement
This Agreement ("Agreement") is made between Primus Knowledge Solutions KK, a
Japanese corporation ("▇▇▇▇▇▇ ▇▇"), Ebisu Primue ▇▇. ▇▇▇▇▇, ▇-▇-▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇ 150 (fax: ▇▇▇-▇-▇▇▇▇-▇▇▇▇) and
Licensee Name: ("Licensee")
------------------------------
Licensee Address:
---------------------------
---------------------------
Fax No.:
---------------------------
▇▇▇▇▇▇ ▇▇ is an authorized Distributor of Primus Knowledge Solutions, Inc., a
Washington U.S.A corporation ("Primus"). Licensee wishes to license software
from ▇▇▇▇▇▇ ▇▇ that is developed or licensed by Primus, and ▇▇▇▇▇▇ ▇▇ is willing
to provide such software, all on the terms and conditions contained in this
Agreement and set forth below. Therefore, for good and valuable consideration,
the receipt and sufficiency of which the parties acknowledge, ▇▇▇▇▇▇ ▇▇ and
Licensee agree to be bound by such terms and conditions.
EXECUTED as of the date set forth below Primus KK's signature (the "Effective
Date"):
Primus Knowledge Solutions KK Licensee
By: By:
--------------------------------- ---------------------------------
--------------------------------- ---------------------------------
Its: Its:
-------------------------------- --------------------------------
Dated: Dated:
------------------------------ ------------------------------
Terms and Conditions
Table A -- Product Identification and Fees
# Fee- # Authorized # Authorized Fee Per Software
Based # Authorized Users Users Distribution User/Server License Fees
Language Servers Workstations (personal ID) (concurrent) Term (US $) (US $)
-------- ------- ------------ ------------- ------------ ------------ ----------- ------------
Primus
SolutionBuilder/TM/ Japanese N/A N/A N/A
TOTAL ORDER -- PRODUCT FEES: US $
Table B -- Payment Terms
Payment Date Payment Amount (US $)
Total
Table C -- Authorized Server Information
Model # Serial # IP Address, Host ID And/Or Disk ID Licensed Site (Street/City/State/Phone)
------- -------- ---------------------------------- ---------------------------------------
* * *
* To be provided within 30 days of contract execution
Section 1. Definitions.
For the purposes of this Agreement, the following capitalized words and phrases
shall be ascribed the following meanings:
1.1 "Application Server" means an Authorized Server on which Licensee installs
and uses the Software applications.
1.2 "Authorized Server" means the servers of Licensee designated in Table C as
Authorized Servers, on which Licensee may use the Server Software at the
Licensed Site(s).
1.3 "Authorized User" means any employee or individual independent contractor
of Licensee or of Licensee's end-user customers who is authorized by Licensee to
use the Software as provided in Sections 2.1 and 2.2.1. The maximum number of
Authorized Users is specified in Table A, and in any supplemental Table A's.
Personal ID Users. Where a number of Authorized Users is specified in Table A
as a personal ID user, up to that number of individual Authorized Users to whom
Licensee has issued a personal user ID and password linked to their personal
user ID may use the applicable Software program by accessing the Authorized
Server(s). Licensee shall ensure that only one personal ID is assigned to each
individual Authorized User, and that no more than one individual Authorized User
uses any one personal user ID and linked password. "Individual" Authorized User
means an individual
Page 14 of 34
person, and not a corporation, company, partnership or association or other
entity or organization.
Concurrent Users. Where a number of Authorized Users is specified in Table A
above as a concurrent user, up to that number of individual Authorized Users may
use the applicable Software program on a concurrent user basis by accessing the
Authorized Server(s), without regard to the user ID of the individual.
1.4 "Authorized Workstation" means a computer workstation or terminal of an
Authorized User with respect to which Licensee has paid a license fee for use of
the Client Software. The maximum number of Authorized Workstations is specified
in Table A, and in any supplemental Table A's.
1.5 "Client Software" means that portion of the Software that is designated in
the Documentation for use on an Authorized Workstation.
1.6 "Confidential Information" means any information disclosed by either party
that is marked with "confidential," "proprietary" or a similar legend.
Confidential Information may be in tangible form, verbal disclosure that is
identified as confidential, or electronic form on any media. Confidential
Information does not include information that is or becomes generally available
to the public other than by breach of this Agreement or which is or becomes
known to the receiving party other than by disclosure by the other party.
1.7 "Database Server" means an Authorized Server on which Licensee stores its
data for use with the Primus Software, and with respect to which Licensee has
paid ▇▇▇▇▇▇ ▇▇ a license fee for use with the Primus Server Software. A Database
Server and an Application Server may be the same server. The maximum number of
Database Servers is specified in Table A, and in any supplemental Table A's.
1.8 "Distribution Term" means the term described in Section 7.2.
1.9 "Documentation" means the Software user manuals, training manuals and other
documentation, including additional, updated or revised documentation, if any,
supplied to Licensee by ▇▇▇▇▇▇ ▇▇.
1.10 "Fee-Based Server" means a Database Server or an Upstream Supplier Server.
1.11 "Initial Software" means the first versions of the Software delivered to
Licensee pursuant to this Agreement, together with any modifications thereof
delivered to remedy any non-compliance with the warranties under Sections 6.1,
6.2 and 6.3.
1.12 "License" means the license granted under Section 2.
1.13 "License Term" means the term of the License as specified in Section 7.1
1.14 "Licensed Site(s)" means the location(s) of the Authorized Server(s)
specified in Table C.
1.15 "New Software" means any versions of the Software delivered to Licensee by
▇▇▇▇▇▇ ▇▇ pursuant to the Support and Maintenance Agreement. New Software does
not include Initial Software.
1.16 "Primus Software" means the Software developed by Primus, as more
particularly identified in Table A.
1.17 "Server Software" means that portion of the Software that is designated in
the Documentation for use on an Authorized Server.
1.18 "Software" means the object code version of Primus' and any Upstream
Supplier's computer programs (including any third party products licensed by
Primus and embedded in Primus' computer programs) more fully described in Table
A, including any modifications or future releases of such software that ▇▇▇▇▇▇
▇▇ may provide to Licensee under this Agreement or under the Support and
Maintenance Agreement.
1.19 "Support and Maintenance Agreement" means the Support and Maintenance
Agreement between ▇▇▇▇▇▇ ▇▇ and Licensee, executed contemporaneously with this
Agreement.
1.20 "Trademarks" means Primus' trademarks Primus, SolutionSeries,
SolutionBuilder, SolutionExplorer, SolutionPublisher and their associated logos,
and any and all other trademarks and/or service marks that ▇▇▇▇▇▇ ▇▇ may use and
approve in writing for use by Licensee in connection with the Software.
1.21 "Upstream Supplier Server" means an Authorized Server with respect to which
Licensee has paid ▇▇▇▇▇▇ ▇▇ a license fee for use with the Upstream Supplier
Software. The maximum number of Upstream Supplier Servers is specified in Table
A, and in any supplemental Table A's.
1.22 "Upstream Supplier Software" means the Software sub-licensed by an Upstream
Supplier to Primus for distribution by Primus and ▇▇▇▇▇▇ ▇▇, as more
particularly specified in Table A.
1.23 "Upstream Supplier" means a third party that has granted Primus a license
to distribute and sub-license products developed by the third party (or its
licensors) to ▇▇▇▇▇▇ ▇▇ and to end-users such as Licensee.
Section 2. Rights To Use Software.
2.1 Grant of License. Subject to the provisions of this Agreement, ▇▇▇▇▇▇ ▇▇
grants to Licensee a non-exclusive, non-transferable license, without right to
sub-license, and solely to support products marketed, distributed and/or
supported by Licensee in its ordinary course of business, to: (i) during the
Distribution Term, (a) reproduce, distribute and install the Server Software at
Licensed Sites on the then current number of Authorized Servers, (b) reproduce,
distribute and install the Client Software on up to the then current number of
Authorized Workstations, and (c) assign personal user IDs and linked passwords,
as appropriate, to up to the then current number of individual Authorized Users;
(ii) during the License Term, use and allow Authorized Users to use the Client
Software on up to the then current number of Authorized Workstations of Licensee
or the Authorized Users; (iii) during the License Term, use and allow up to the
then current number of Authorized Users to use the Server Software on Licensee's
Authorized Server(s); (iv) during the License Term, (a) use and allow Authorized
Users to use the Documentation in conjunction with their use of the Software,
(b) modify the Documentation to the extent permitted under Section 2.2.4(b)
below, and (c) make one paper copy of those portions of the Documentation
consisting of the Primus Software user manuals for each Authorized Workstation
and two paper copies for each Authorized Server; (v) during the License Term,
use the Trademarks solely in copies of the Software and Documentation made and
distributed in accordance with this Agreement, and (vi) during the License Term,
modify the SolutionPublisher and SolutionExplorer Software configuration files,
solely to customize the SolutionPublisher and SolutionExplorer Software to
Licensee's presentation standards.
2.2 Reservation. All rights to the Software, Documentation, Trademarks and
trade secrets of Primus not expressly granted to Licensee in this Agreement are
reserved by ▇▇▇▇▇▇ ▇▇ and Primus. Without limiting the generality of the
foregoing, Licensee shall use the Software only for the purposes specified in
Section 2.1 and in accordance with the following:
2.2.1 Authorized Users. Licensee shall ensure that all Authorized Users
comply with Sections 2 and 5.7 of this Agreement.
Page 15 of 34
2.2.2 Location and Relocation of Authorized Servers. Only locations under the
direct custody and control of Licensee in countries previously approved in
writing by ▇▇▇▇▇▇ ▇▇ shall qualify as Licensed Sites. If Licensee wants to move
the Server Software from an Authorized Server to a different server of Licensee
or wants to move an Authorized Server with the Server Software to a different
Licensed Site, then Licensee must give prior written notice to ▇▇▇▇▇▇ ▇▇ of the
desired change and the model, serial number and ID of the new Authorized Server,
and the address of the new Licensed Site, as applicable.
2.2.3 Testing and Back-up Copies. Licensee may reproduce the Software as
reasonably necessary for bona fide testing, back-up or archival purposes.
2.2.4 Modifications.
(a) Software. Licensee assumes full responsibility for any changes,
modifications or improvements to the Software made by any person other than
▇▇▇▇▇▇ ▇▇ or Primus KK's authorized agent, or other than at Primus KK's express
direction. ▇▇▇▇▇▇ ▇▇ recommends that Licensee consult with ▇▇▇▇▇▇ ▇▇ prior to
making any modifications. Licensee hereby releases ▇▇▇▇▇▇ ▇▇ and Primus from all
liability and waives all rights, claims and remedies against ▇▇▇▇▇▇ ▇▇ and
Primus, for any and all loss and damages of any kind or nature, to the extent
that they arise out of any such changes, modifications or improvements.
(b) Training Manuals. Licensee may modify only those portions of the
Documentation consisting of the Primus Software training manuals, by modifying
Primus' generic content standard and process documents as necessary to meet
Licensee's internal training needs, provided however, that Primus shall retain
and Licensee hereby assigns to Primus all and any ownership rights in and to all
such modifications, and provided further, that such modifications shall be
deemed to be Documentation under this Agreement, to the effect that Licensee has
the same rights to use the modifications as apply to the rest of the
Documentation.
2.2.5 No Conveyance of Ownership; Trade Secrets. This Agreement does not
convey to Licensee ownership of the Software or Documentation or any media
delivered to Licensee on which the Software is stored, but only the right to use
the Software, Documentation and media as provided in this Agreement. Licensee
acknowledges that the Software (including without limitation its structure,
organization and code), the Documentation and Primus' and ▇▇▇▇▇▇ ▇▇'ss
Confidential Information, and all technical data and information associated
therewith constitute trade secrets and are the valuable property of Primus,
▇▇▇▇▇▇ ▇▇ and their licensors and that the Software and Documentation are
protected by copyright and trademark rights.
2.2.6 Trademarks. Licensee shall not remove, obscure or alter any notice of
copyright, patent, trade secret, trademark or other proprietary right or
disclaimer appearing in or on any Software or Documentation and shall ensure
that every copy of all or any portion of the Software and/or Documentation made
by Licensee includes such notices. Licensee shall clearly indicate the ownership
of the Trademarks by Primus or ▇▇▇▇▇▇ ▇▇, as applicable, whenever it uses the
Trademarks.
2.2.7 Reverse Engineering. Except to the extent (if any) permitted by
applicable law, Licensee shall not decompile, or create or attempt to create, by
reverse engineering or otherwise, the source code from the object code supplied
hereunder or use it to create a derivative work.
2.2.8 Service Bureau. Licensee shall not use or distribute any of the
Software to operate a service bureau or similar service.
Section 3. Delivery Of Software.
▇▇▇▇▇▇ ▇▇ shall deliver to Licensee at Licensee's reasonably designated
destination, F.O.B. ▇▇▇▇▇▇ ▇▇'ss premises in Tokyo: (i) one reproducible master
of the Primus Software, and two reproducible masters of those portions of the
Documentation consisting of the Primus Software user manuals; and (ii) one set
of Documentation for the Upstream Supplier Software, and either (a) one
reproducible master of the Upstream Supplier Software, or (b) that number of
pre-packaged sets of the Upstream Supplier Software as are necessary for all of
Licensee's Authorized Workstation, Authorized User and Authorized Server rights
with respect to such Software.
Section 4. Compensation; Additional Purchases.
4.1 Payment of License Fee. Licensee shall pay ▇▇▇▇▇▇ ▇▇ the Software license
fees in cash in the amounts and on the dates specified in Tables A and B. Unless
Licensee's accounting policies permit Licensee to pay such fees in the absence
of a purchase order, Licensee shall issue an appropriate purchase order with
respect to such fees immediately following execution of this Agreement by
Licensee. Payment is due as specified in Table B, irrespective of whether
Licensee has issued a purchase order. ▇▇▇▇▇▇ ▇▇ may impose a finance charge of
1% per month on amounts unpaid by Licensee on their due date.
4.2 Additional License Rights. If Licensee wishes to increase the number of
Authorized Workstations, Authorized Users or Fee Based Servers, then Licensee
shall submit a purchase order to ▇▇▇▇▇▇ ▇▇ for the quantity of additional
Authorized Workstations, Authorized Users and Fee-Based Servers desired at the
rates and in the minimum blocks for increasing licensed usage specified in
Schedule 3 (if any). Under no circumstances shall any of such rights extend
beyond the period in which Distributor has the right to distribute the Software.
If no rate or minimum is specified, then ▇▇▇▇▇▇ ▇▇ and Licensee shall negotiate
in good faith to determine a mutually satisfactory rate and minimum license
amount, and shall both execute an amendment to this Agreement reflecting such
terms in supplemental Tables A and B (numbered ▇-▇, ▇-▇ and so forth). Upon
execution of the amendment, Licensee may (i) install the Server Software on the
additional Fee-Based Servers; (ii) install the Client Software on the additional
Authorized Workstations; and (iii) increase the number of Authorized Users
accordingly. If Licensee increases the number of Fee-Based Servers, then
Licensee shall also notify ▇▇▇▇▇▇ ▇▇ of (a) the model, serial number and ID of
the server on which the Server Software is to be installed, and its IP address,
host ID and/or disk ID, and (b) the location of the Licensed Site.
4.3 Sales Taxes, Etc. Licensee shall be responsible for any applicable sales,
use, or any value added or similar taxes payable with respect to the licensing
of the Software to Licensee, or arising out of or in connection with this
Agreement, other than taxes imposed in Japan based upon Primus KK's income. If
Licensee has tax-exempt status, Licensee shall provide written evidence of such
status with its purchase orders.
4.4 Accounting. Licensee shall keep current, complete and accurate records
regarding the location, model name, and serial number of all Authorized Servers
on which the Server Software is installed, of all
Page 16 of 34
installations of the Client Software made by Licensee and any Authorized User,
of all personal user IDs and linked passwords issued with respect to applicable
Software, and of the number of concurrent users of applicable Software. Licensee
shall provide such information to ▇▇▇▇▇▇ ▇▇ within five (5) days of Primus KK's
written request. Upon five (5) days prior written notice, ▇▇▇▇▇▇ ▇▇ and/or its
representatives may inspect, audit, and copy such records of Licensee and access
the Server Software at any of Licensee's relevant locations and/or Licensed
Sites, at any time during Licensee's regular business hours. Unless an audit
discloses a material discrepancy in Licensee's favor, ▇▇▇▇▇▇ ▇▇ may exercise
such audit rights no more than once during any twelve (12) month period. In the
event of any understatement of the license fees due, Licensee shall promptly pay
such fees based upon Primus KK's then current list price and, upon receipt of
such fees, ▇▇▇▇▇▇ ▇▇ will extend this License to correct any such deficiency.
Primus KK's acceptance of any payment shall be without prejudice to any other
rights or remedies of ▇▇▇▇▇▇ ▇▇ under this Agreement or applicable law. Upon
written request by ▇▇▇▇▇▇ ▇▇, Licensee shall transmit a current, complete and
correct copy of the log file for each copy of the Server Software to ▇▇▇▇▇▇ ▇▇;
provided, however, that ▇▇▇▇▇▇ ▇▇ may not request a copy of the log file more
frequently than once a quarter, unless review of a log file has indicated
additional fees are due to ▇▇▇▇▇▇ ▇▇.
Section 5. Additional Rights And Obligations.
5.1 Increase in Application Servers. Licensee may increase the number of
Application Servers at no charge. If Licensee wishes to increase the number of
Application Servers, then Licensee shall provide ▇▇▇▇▇▇ ▇▇ with written notice
of (i) the quantity of additional Application Servers desired, (ii) the model,
serial number and ID of the server on which the Server Software is to be
installed, and its IP address, host ID and/or disk ID, and (iii) the location of
the Licensed Site. Upon written acceptance by ▇▇▇▇▇▇ ▇▇, Licensee may install
the Server Software on the additional Application Server. ▇▇▇▇▇▇ ▇▇ and Licensee
shall amend Table C accordingly.
5.2 Data Protection. Licensee shall maintain current back-up copies of all of
Licensee's data used in connection with the Software.
5.3 Reference. Licensee authorizes ▇▇▇▇▇▇ ▇▇ to disclose that it is a customer
and agrees to be a reference account for ▇▇▇▇▇▇ ▇▇.
5.4 Third Party Products. The Software incorporates material which is licensed
from third parties. Any third party licensor of such material shall be a direct
and intended third party beneficiary of this Agreement who may enforce this
Agreement directly against Licensee.
5.5 Confidential Information. Neither ▇▇▇▇▇▇ ▇▇ nor Licensee shall, with
respect to any Confidential Information which one of them (a "Recipient")
receives from the other (a "Discloser"), at any time, without the express prior
written consent of Discloser, except solely for the purposes contemplated in any
written agreement between them, disclose or otherwise make known or available to
any person or entity, or use for Recipient's own account, any of Discloser's
Confidential Information. Recipient shall use all reasonable procedures to
safeguard Discloser's Confidential Information.
5.6 Compliance With Law. Licensee shall comply with all applicable laws and
regulations in its use of the Software and Documentation. Without limiting the
generality of the foregoing, Licensee shall not export or re-export, directly or
indirectly, any Software in violation of any applicable United States export
control laws and regulations and shall promptly provide ▇▇▇▇▇▇ ▇▇ with any
"letter of assurance" requested by ▇▇▇▇▇▇ ▇▇ pursuant to such laws and
regulations.
5.7 Protection Against Unauthorized Use. Licensee shall promptly notify ▇▇▇▇▇▇
▇▇ of any unauthorized use of any Software of which Licensee becomes aware. In
the event of any unauthorized use by any Authorized User (or by any employee,
agent, representative or contractor of Licensee or of any Authorized User),
Licensee shall use its best efforts to immediately terminate and prevent further
occurrences of such unauthorized use. If Licensee commences any legal proceeding
in connection with such unauthorized use, then ▇▇▇▇▇▇ ▇▇ and Primus may, at
Primus KK's or Primus' option and expense, participate in or control any such
proceeding. In such event, Licensee, ▇▇▇▇▇▇ ▇▇ and Primus shall each provide the
other with such authority, information and assistance related to such proceeding
as may be reasonably necessary to safeguard Primus KK's and Primus' interests
and Licensee's rights under this Agreement.
5.8 Miscellaneous Provisions. Dispute resolution and other provisions are
contained in Schedule 1 to this Agreement. The parties shall resolve any
disputes in accordance with such provisions.
Section 6. Primus KK's Warranties; Remedies.
6.1 Primus Software Warranties.
6.1.1 Media. ▇▇▇▇▇▇ ▇▇ warrants to Licensee that the media on which the
Primus Software is delivered by ▇▇▇▇▇▇ ▇▇ to Licensee will be free from defects
in materials and workmanship for a period of ninety (90) days beginning on the
date of shipment by ▇▇▇▇▇▇ ▇▇.
6.1.2 Performance. ▇▇▇▇▇▇ ▇▇ warrants to Licensee that the Primus Software as
delivered by ▇▇▇▇▇▇ ▇▇ to Licensee will perform in all material respects in
accordance with the applicable specifications set forth in the applicable
Documentation for a period of ninety (90) days beginning on the date of shipment
by ▇▇▇▇▇▇ ▇▇.
6.1.3 Infringement. ▇▇▇▇▇▇ ▇▇ warrants to Licensee that use in accordance
with this Agreement of the Primus Software as delivered by Distributor does not
infringe: (i) to the best of Distributor's knowledge, any valid copyright in any
in Japan, or (ii) to Distributor's actual knowledge, any patent or trademark
existing under the laws of Japan.
6.2 Upstream Supplier Software Warranties. ▇▇▇▇▇▇ ▇▇ warrants to Licensee that
the Upstream Supplier Software, as delivered by ▇▇▇▇▇▇ ▇▇ to Licensee, will
conform to the warranties specified in Schedule 2.
6.3 Authority. ▇▇▇▇▇▇ ▇▇ warrants to Licensee that ▇▇▇▇▇▇ ▇▇ has all requisite
corporate authority to execute and deliver this Agreement, and that the
execution, delivery and performance of this Agreement by ▇▇▇▇▇▇ ▇▇ does not
conflict with any obligation of ▇▇▇▇▇▇ ▇▇ under any agreement or instrument to
which ▇▇▇▇▇▇ ▇▇ is a party or by which it is bound.
6.4 Bugs and Abatement. Without limiting the foregoing, ▇▇▇▇▇▇ ▇▇ does not
warrant that the Software is free from all bugs, errors, or omissions. The
warranties in this Section 6.1 shall automatically ▇▇▇▇▇ to the extent that the
Software has been damaged, abused, modified, or combined with other software by
persons other than Primus KK's authorized employees or representatives, or other
than at Primus KK's express direction.
6.5 Performance Remedy. If any Software fails to comply with the warranties set
forth in Sections 6.1.1 and 6.1.2, and paragraphs A.1 and A.2 of Schedule 2, and
if Licensee provides written notice of the non-compliance to ▇▇▇▇▇▇ ▇▇ within
the warranty period then, except as otherwise specified in Schedule 2, ▇▇▇▇▇▇ ▇▇
will either repair or, at its option, replace any non-complying media or
Software. If ▇▇▇▇▇▇ ▇▇ is unable to correct the noncompliance within sixty (60)
days of
Page 17 of 34
receipt of such written notice from Licensee then, except as otherwise specified
in Schedule 2, ▇▇▇▇▇▇ ▇▇ shall (i), with respect to non-compliant Initial
Software, promptly refund all of the License fees paid for such Software and
terminate the License with respect to such Software, and (ii), with respect to
non-compliant New Software, promptly refund all of the most recent annual
Support and Maintenance Agreement fees paid by Licensee and attributable to the
development of such New Software, in each case (i) and (ii) in full and final
satisfaction of all and any of Licensee's claims arising out of media or
Software failure.
6.6 Infringement Remedy. ▇▇▇▇▇▇ ▇▇ shall defend and indemnify Licensee against
any proceeding based upon any failure to satisfy the warranties set forth in
Section 6.1.3 and paragraph A.3 of Schedule 2, provided that (a) Licensee shall
notify ▇▇▇▇▇▇ ▇▇ in writing of any claim of infringement promptly after it has
been made, (b) ▇▇▇▇▇▇ ▇▇ or its licensors shall have exclusive control over the
defense and settlement of the proceeding, (c) Licensee shall make no admission
of liability nor enter into any settlement without the prior written agreement
of ▇▇▇▇▇▇ ▇▇, (d) Licensee shall provide such assistance in defense of the
proceeding as ▇▇▇▇▇▇ ▇▇ or Primus KK's licensors may reasonably request, at
Primus KK's reasonable expense, and (e) Licensee shall comply with any court
order or settlement made in connection with the proceeding. If use of the
Software is, or in Primus KK's reasonable opinion is likely to become, the
subject of a claim of infringement of any intellectual property right of any
third party, then ▇▇▇▇▇▇ ▇▇ shall have the right to: (i) procure the continuing
right of Licensee to use the Software; (ii) replace or modify the Software in a
functionally equivalent manner so that it no longer infringes; or (iii) except
as otherwise specified in Schedule 2, terminate the License with respect to the
Software subject to the infringement claim and refund to Licensee an amount
equal to the depreciated License fees paid by Licensee for such Software
(calculated on a straight line basis over a five (5) year life).
6.7 Warranties Repeated For Replacements and New Software. The warranties and
other provisions of this Section 6 shall be automatically repeated for any
modifications of the Software delivered to remedy any non-compliance with the
warranties under Sections 6.1 and 6.2 and for any New Software, in each case
upon shipment of the same by ▇▇▇▇▇▇ ▇▇ to Licensee.
6.6 Disclaimer Of Implied Warranties. ▇▇▇▇▇▇ ▇▇ makes no representation or
warranty in connection with the Software, except as set forth in Sections 6.1,
6.2 and 6.3. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 6, AND TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ▇▇▇▇▇▇ ▇▇ DISCLAIMS, FOR ITSELF AND
FOR PRIMUS, AND LICENSEE WAIVES AND RELEASES ALL RIGHTS AND REMEDIES OF
LICENSEE, AND ALL WARRANTIES, OBLIGATIONS, AND LIABILITIES OF [DISTRIBUTOR] OR
OF PRIMUS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY
BUG, ERROR, OMISSION, DEFECT, DEFICIENCY, OR NONCONFORMITY IN ANY SOFTWARE OR
OTHER ITEMS FURNISHED UNDER THIS AGREEMENT OR THE SUPPORT AND MAINTENANCE
AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY: (A) IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) IMPLIED WARRANTY
ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; (C)
CLAIM OF INFRINGEMENT; OR (D) STATUTORY REMEDY.
Section 7. Term and Termination.
7.1 License Term. The License Term shall commence upon the date of this
Agreement and shall continue in perpetuity unless the Agreement is terminated in
accordance with Section 7.3.
7.2 Distribution Term. If no Distribution Term is specified in Table A, then
the Distribution Term shall be the same as the License Term. The Distribution
Term, if specified in Table A, shall commence as specified for Software
identified in Table A as being subject to the Distribution Term and, subject to
earlier termination of this Agreement in accordance with Section 7.3, shall
expire as specified in Table A. Expiration of the Distribution Term shall not in
and of itself automatically terminate the right of Licensee and/or Authorized
Users to continue to use the Software and Documentation pursuant to Section 2
above.
7.3 Termination On Breach. In the event of a material breach or default under
this Agreement by either party, the non-breaching party may terminate this
Agreement by giving the breaching party written notice of the breach or default
and the non-breaching party's intention to terminate. At the non-breaching
party's sole and absolute discretion, the Agreement shall automatically
terminate thirty (30) days after delivery of such notice, unless the breaching
party cures the breach or default before the expiration of the thirty (30) day
period. A material breach includes, without limitation, Licensee's failure to
pay license fees when due.
7.4 Post Termination Obligations. Following termination of this Agreement,
howsoever arising, Licensee shall destroy all copies of the Server Software
within five (5) days of such termination, and all copies of the Client Software
and the Documentation within twenty (20) days of such termination, and
immediately thereafter provide ▇▇▇▇▇▇ ▇▇ with a written certification signed by
an authorized representative of Licensee certifying that all copies of the
Software have been destroyed and all use of the Software has been discontinued.
Upon written request, each party shall return or destroy all copies of any
Confidential Information of the other, as certified by an executive officer of
the returning party.
7.5 Survival. The provisions of Sections 2.2.5, 2.2.7 and 5.5 hereof, and of
Sections 1, 3, 4 and 5 of Schedule 1 hereto shall survive termination of this
Agreement, howsoever arising.
Section 8. Schedules And Exhibits.
Each of the exhibits and schedules listed below shall be incorporated into and
shall for all purposes be deemed a part of this Agreement:
Schedule 1 - Dispute Resolution and Other Provisions
Schedule 2 - Upstream Supplier Software Warranties
Page 18 of 34
SCHEDULE 1
DISPUTE RESOLUTION AND OTHER PROVISIONS
1. Dispute Resolution.
1.1 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the internal laws of the State of Washington, and, where such
laws are preempted by the laws of the United States, by the internal laws of the
United States, in each case without regard to (a) conflicts of laws principles,
and (b) the applicability, if any, of the United Nations Convention on Contracts
for the International Sale of Goods. In the event of any claim, liability or
dispute (collectively, a "Claim") arising out of the performance by ▇▇▇▇▇▇ ▇▇ of
its obligations under this Agreement, and provided that the Claim does not
involve (i) Primus Knowledge Solutions, Inc., a Washington, U.S.A. corporation
or its licensors (collectively, "Primus US"), (ii) the performance of the
Software, or (iii) any intellectual property rights pertaining to the Software,
then ▇▇▇▇▇▇ ▇▇ and Licensee may jointly elect to (a) have any such Claim be
governed by Japanese law, and (b) resolve the Claim in Japan. Any such election
shall be deemed to supercede the provisions of Sections 1.1, 1.2, 1.3 and 1.6 of
this Schedule 1, solely for the purposes of such Claim.
1.2 Mediation. In the event of any controversy or claim arising out of or
relating to this Agreement or the breach or interpretation thereof, the parties
shall, upon five days notice from either one to the other, submit themselves and
the subject-matter of the dispute to mediation before an independent mediator to
be appointed by the head office of the American Arbitration Association or,
unless the dispute involves (i) Primus US, (ii) the performance of the Software,
or (iii) any intellectual property rights pertaining to the Software, by such
other organization as shall be mutually acceptable to the parties. Costs of
mediation shall be borne equally between the parties.
1.3 Arbitration. In the event that the parties remain in dispute following the
mediation, the controversy or claim shall be determined by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association by a single, disinterested arbitrator or, unless the dispute
involves (i) Primus US, (ii) the performance of the Software, or (iii) any
intellectual property rights pertaining to the Software, in accordance with the
rules of such other organization as shall be mutually acceptable to the parties
such other. The arbitrator shall be appointed in accordance with the applicable
rules. The determination of the arbitrator shall be final, conclusive and
binding. Judgment upon the award rendered may be entered in any court of any
state or country having jurisdiction.
1.4 Conduct. Each party shall ensure that any mediation and arbitration are
conducted as speedily as is reasonably possible, and that all and any
information disclosed during or in connection with the arbitration is treated by
each party with the strictest confidence.
1.5 Interim and Permanent Relief. Upon the application of either party to this
Agreement, and whether or not an arbitration or mediation has yet been
initiated, all courts having jurisdiction over one or more of the parties are
authorized to: (i) issue and enforce in any lawful manner such temporary
restraining orders, preliminary injunctions and other interim measures of relief
as may be necessary to prevent harm to a party's interests or as otherwise may
be appropriate pending the conclusion of arbitration proceedings pursuant to
this Agreement; and (ii) enter and enforce in any lawful manner such judgments
for permanent equitable relief as may be necessary to prevent harm to a party's
interests or as otherwise may be appropriate following the issuance of arbitral
awards pursuant to this Agreement.
1.6 Venue. Any mediation or arbitration conducted under or in connection with
this Agreement shall take place at the location of party against whom the
proceeding is brought, at a time to be determined by the mediator or arbitrator,
as the case may be.
1.7 Legal Expenses. If any proceeding is brought by either party to enforce or
interpret any term or provision of this Agreement, the substantially prevailing
party in such proceeding (as determined by the arbitrator in its sole
discretion) shall be entitled to recover, in addition to all other relief
arising out of this Agreement, such party's reasonable attorneys' and other
experts' (including without limitation accountants) fees and expenses (as
determined by the arbitrator in its sole discretion.
2. Excused Performance; Force Majeure. If the performance of this Agreement is
adversely restricted by reason of any circumstances beyond the reasonable
control and without the fault or negligence of the party affected, then the
party affected, upon giving prompt written notice to the other party, shall be
excused from such performance on a day-to-day basis to the extent of such
restriction (and the other party shall likewise be excused from performance of
its obligations on a day-to-day basis to the extent such party's obligations
relate to the performance so restricted); provided, however, that the party so
affected shall use all commercially reasonable efforts to avoid or remove such
causes of non-performance and both parties shall proceed whenever such causes
are removed or cease.
3. Exclusion of Certain Claims. IN NO EVENT SHALL ▇▇▇▇▇▇ ▇▇ OR PRIMUS US BE
LIABLE (WHETHER IN TORT OR CONTRACT, UNDER STATUTE OR OTHERWISE) FOR ANY
INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT
LIMITATION DAMAGES FOR LOSS OF PROFITS, REPLACEMENT WITH SUBSTITUTE PRODUCTS,
BUSINESS INTERRUPTION, LOSS OF INFORMATION AND THE LIKE, ARISING OUT OF ITS
PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT OR THE USE, INABILITY TO USE OR
RESULTS OF USE OF THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
4. Limitation of Liability. Primus KK's liability arising out of this agreement
shall in no event exceed the fees paid by Licensee to ▇▇▇▇▇▇ ▇▇ under this
Agreement.
5. Equitable Relief. Each of Licensee and ▇▇▇▇▇▇ ▇▇ acknowledges that damages
will be an inadequate remedy if the other violates the terms of this Agreement,
or otherwise fails to perform its obligations hereunder. Accordingly, subject to
Section 1 of this Schedule, each of them shall have the right, in addition to
any other rights each of them may have, to obtain in any court of competent
jurisdiction, temporary, preliminary and permanent injunctive relief to restrain
any breach, threatened breach, or otherwise to specifically enforce any of the
obligations in this Agreement.
6. Waiver. No waiver of or with respect to any provision of this Agreement, nor
consent by a party to the breach of or departure from any provision of this
Agreement, shall in any event be binding on or effective against such party
unless it be in writing and signed by such party, and then such waiver shall be
effective only in the specific instance and for the purpose for which given.
7. Captions and Headings. The captions and headings are inserted in this
Agreement for convenience only, and shall not be deemed to limit or describe the
scope or intent of any provision of this Agreement.
8. Severability; Invalidity. If any provision of this Agreement is held to be
invalid, such invalidity shall not render invalid the remainder of this
Agreement or the remainder of which such invalid provision is a part. If any
provision of this Agreement is so broad as to be held unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
9. Assignment. Licensee shall not assign any of its rights under this Agreement
without the prior written consent of ▇▇▇▇▇▇ ▇▇, which shall not be unreasonably
withheld. Distributor May assign all or any of its rights and obligations under
this Agreement to Primus upon expiration or termination of Distributor's rights
to distribute the Software. Subject to the foregoing restriction on assignment
by Licensee, this Agreement shall be binding upon, inure to the benefit of and
be enforceable by the parties and their respective successors and assigns.
▇▇▇▇▇▇ ▇▇ may assign all or any of its rights to enforce this Agreement to any
licensor of ▇▇▇▇▇▇ ▇▇.
10. Notices. Any notice or other communication under this Agreement given by
either party to the other party shall be deemed to be properly given if given in
writing and delivered (i) by facsimile transmission (receipt
Page 19 of 34
confirmed) or (ii) by nationally recognized private courier, (e.g., Federal
Express) properly addressed and prepaid, to the recipient at the address
identified on the first page of this Agreement. Either party may from time to
time change its address by giving the other party notice of the change in
accordance with this Section.
11. Entire Agreement; Amendments. This Agreement constitutes and embodies the
entire agreement and understanding between the parties with respect to the
subject matter hereof and supersedes all prior or contemporaneous written,
electronic or oral communications, representations, agreements or understandings
between the parties with respect thereto. This Agreement may not be modified or
amended except by a written instrument executed by both parties. In the event of
any conflict between the provisions of this Agreement and the terms of any form
of purchase order or invoice, the provisions of this Agreement shall prevail.
Licensee's standard terms of purchase, if any, are inapplicable.
12. Counterparts. This Agreement and any amendments hereto may be executed in
one or more counterparts, which taken together shall constitute a single
agreement between the parties.
Page 20 of 34
Terms offered are valid only through
------------
PRIMUS KNOWLEDGE SOLUTIONS KK
Support And Maintenance Agreement
This Agreement ("Agreement") is made between Primus Knowledge Solutions KK, a
Japanese corporation ("▇▇▇▇▇▇ ▇▇"), Ebisu Primue ▇▇. ▇▇▇▇▇, ▇-▇-▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇ 150 (fax: ▇▇▇-▇-▇▇▇▇-▇▇▇▇) and
Licensee Name: ("Licensee")
--------------------------
Licensee Address:
--------------------------
--------------------------
Fax No.:
--------------------------
Licensee has licensed certain software from ▇▇▇▇▇▇ ▇▇. Licensee wishes to
receive, and [wishes to provide related support and maintenance services, all on
the terms and conditions contained in this Agreement and set forth below.
Therefore, for good and valuable consideration, the receipt and sufficiency of
which the parties acknowledge, ▇▇▇▇▇▇ ▇▇ and Licensee agree to be bound by such
terms and conditions.
EXECUTED as of the date set forth below Primus KK's signature (the "Effective
Date"):
Primus Knowledge Solutions KK Licensee
By: By:
------------------------------- -------------------------------
Its: Its:
------------------------------- -------------------------------
Dated: Dated:
------------------------------ -------------------------------
Terms and Conditions
Table A Product And Support And Maintenance Fees
Product Language Software License Support & Annual Support & Payment Terms
Fees (US $) Maintenance Rate* Maintenance Fee (US $) Payment Date Payment Amount (US $)
------------------------------------------------------------------------------------------------------------------------------------
Primus Products
------------------------------------------------------------------------------------------------------------------------------------
SolutionBuilder(R) Japanese
------------------------------------------------------------------------------------------------------------------------------------
Total Initial Order N/A
Fees (US $)
------------------------------------------------------------------------------------------------------------------------------------
* Percentage of total license fees
Section 1. Definitions.
For the purposes of this Agreement, the following capitalized words and phrases
shall be ascribed the following meanings:
1.1 "Error" means the failure of a Licensed Program to conform in any material
respect to its published Documentation.
1.2 "Fix" shall mean a modification or an addition to a Licensed Program or its
Documentation that overcomes an Error when made or added to such program or
Documentation.
1.3 "License Agreement" means the Software License Agreement executed by ▇▇▇▇▇▇
▇▇ and Licensee contemporaneously with this Agreement, together with any and all
amendments to the Software License Agreement.
1.4 "Licensed Program" means any of the software products specified in Table A.
Licensed Programs include any and all Upgrades delivered to Licensee pursuant to
this Agreement or the License Agreement.
1.5 "Maintenance Release" means a Fix, or a new release of a Licensed Program
with a change in the ZZ component of that Licensed Program's X.YY.ZZ version
number.
1.6 "Major Release" means a new release of a Licensed Program with a change in
the YY component of that Licensed Program's X.YY.ZZ version number.
1.7 "New Release" means a new release of a Licensed Program with a change in
the X component of that Licensed Program's X.YY.ZZ version number.
1.8 "Support and Maintenance Term" means an annual period during which ▇▇▇▇▇▇
▇▇ shall provide Licensee with the support and maintenance services specified in
this Agreement.
1.9 "Upgrade" means Maintenance Releases, Major Releases and New Releases.
1.10 "Workaround" means a set of procedures that Licensee may follow to
circumvent or mitigate the impact of an Error, notwithstanding that the Error
still exists. ▇▇▇▇▇▇ ▇▇ may provide a Workaround in lieu of a Fix in Primus KK's
sole discretion.
1.11 Other Defined Terms. Except as expressly defined in this Agreement,
capitalized terms shall have the meaning ascribed to them in the License
Agreement.
Section 2. Primus KK's Provision of Services.
2.1 Technical Support. ▇▇▇▇▇▇ ▇▇ shall provide telephone, fax and electronic
support from its Seattle headquarters regarding use of the Software and
resolution of Errors Monday through Friday from 6.30 a.m. to 5:30 p.m. Tokyo
time. In addition, ▇▇▇▇▇▇ ▇▇ shall make on-call technical support staff
available for High Priority situations (as
Page 21 of 34
defined in Section 2.2.1 below) twenty-four (24) hours a day, seven (7) days a
week. ▇▇▇▇▇▇ ▇▇ shall provide such support to up to two (2) support contacts
designated by Licensee who shall be knowledgeable in all aspects of Licensee's
operating environment. ▇▇▇▇▇▇ ▇▇ shall use all commercially reasonable efforts
to ensure that a technical support representative returns Licensee's call within
one hour of receiving Licensee's notification of a High Priority situation
(described below).
2.2 Support Response. ▇▇▇▇▇▇ ▇▇ will assign all Licensee requests for Error
support one of three response priorities. The priorities will dictate the timing
and nature of the response as follows:
2.2.1 High Priority. A major feature/function of the Software is not working or
the system integrity is at risk.
Response Goal: ▇▇▇▇▇▇ ▇▇ shall use all commercially reasonable efforts to
provide a Fix or Workaround within twenty-four (24) hours of Licensee's report
of the problem. If ▇▇▇▇▇▇ ▇▇ cannot provide the Fix or Workaround within the
twenty-four (24) hours ▇▇▇▇▇▇ ▇▇ will dedicate resources to the problem
resolution and will inform Licensee on a daily basis of the resolution status.
2.2.2 Medium Priority. Licensee's work flow is inhibited or a non-major
feature/function of the Software is not working.
Response Goal: ▇▇▇▇▇▇ ▇▇ shall use all commercially reasonable efforts to
provide a Fix or Workaround within two (2) business days of the Licensee's
report of the problem. If ▇▇▇▇▇▇ ▇▇ cannot resolve the problem within the two
(2) business days, ▇▇▇▇▇▇ ▇▇ will inform Licensee on a weekly basis of the
resolution status.
2.2.3 Low Priority. Licensee has a problem which is not seriously impacting
Licensee's workflow.
Response Goal: ▇▇▇▇▇▇ ▇▇ shall use all commercially reasonable efforts to
provide a Fix or a Workaround within five (5) business days of Licensee's report
of the problem. If ▇▇▇▇▇▇ ▇▇ cannot resolve the problem within the five (5)
business days, ▇▇▇▇▇▇ ▇▇ will provide Licensee with a status evaluation
regarding the ultimate resolution.
2.2.4 On-Site Visits. If ▇▇▇▇▇▇ ▇▇ and Licensee mutually determine that ▇▇▇▇▇▇
▇▇ may more effectively resolve a High Priority Error with an on-site visit to
Licensee's relevant location, then Licensee shall be responsible for Primus KK's
reasonable travel and living expenses incurred in conducting such visit. If
Licensee requests ▇▇▇▇▇▇ ▇▇ to attend on-site for any other purpose, and ▇▇▇▇▇▇
▇▇ agrees, then Licensee shall pay ▇▇▇▇▇▇ ▇▇ for Primus KK's services on a time
and materials basis, at Primus KK's then current daily rates, and shall
reimburse ▇▇▇▇▇▇ ▇▇ for Primus KK's reasonable travel and living expenses.
2.3 Licensee Cooperation. Licensee acknowledges that ▇▇▇▇▇▇ ▇▇ may not be able
to resolve an Error if Licensee does not use all commercially reasonable efforts
to cooperate with and assist ▇▇▇▇▇▇ ▇▇ in resolving the Error (including,
without limitation, in replicating the Error, in retrieving workstation, server
and log file data relating to the Error, and in providing ▇▇▇▇▇▇ ▇▇ with remote
access to Licensee's installation for support purposes).
2.4 Upgrades. ▇▇▇▇▇▇ ▇▇ shall provide Licensee with Upgrades as and when they
are made generally commercially available by ▇▇▇▇▇▇ ▇▇ to Primus KK's customers.
▇▇▇▇▇▇ ▇▇ may provide Licensee with Maintenance Releases if Licensee is
experiencing, or in Primus KK's sole discretion may experience a High Priority
situation. As specified in the License Agreement, Upgrades shall constitute
"Software" under the License Agreement.
2.5 Scope of Support and Upgrade Services. ▇▇▇▇▇▇ ▇▇ shall have no obligation
to correct Errors or support queries arising from Licensee's misuse or
alteration of the Software, failure or fluctuation of electrical power,
maintenance of the Software by anyone other than ▇▇▇▇▇▇ ▇▇ or Primus KK's
authorized representatives, or Licensee's combining or merging Software with any
hardware or software not identified as compatible by ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ shall
have no obligation to correct Errors or support Licensed Programs except with
respect to the then current and next last current Major Releases; provided,
however, that for the purposes of determining the next last current Major
Release, ▇▇▇▇▇▇ ▇▇ shall ignore any version of any Licensed Program that does
not comply with the media or performance warranties under the License Agreement.
It shall be a condition to Primus KK's provision of support services and
Upgrades pursuant to this Agreement that Licensee shall be current on its
support and maintenance fee payments for all of the Software.
Section 3. Fees
3.1 Annual Fee. Licensee shall pay the initial annual support and maintenance
fee in cash in the amounts and on the dates set forth in Table A. Licensee shall
pay subsequent annual support and maintenance fees within thirty (30) days of
the commencement of each successive Support and Maintenance Term. Unless
Licensee's accounting policies permit Licensee to pay such fee in the absence of
a purchase order, Licensee shall issue an appropriate purchase order with
respect to such fees within twenty (20) days of the commencement of each
successive Support and Maintenance Term.
3.2 Notice of Change in Annual Fee. At least sixty (60) days before the end of
each Support and Maintenance Term, ▇▇▇▇▇▇ ▇▇ shall notify Licensee in writing of
any increase in the support and maintenance fee for the next Support and
Maintenance Term. Annual increases of the support and maintenance fees shall not
exceed a percentage of the previous annual fee that is the greater of (a) five
percent (5%), or (b) the percentage increase in the United Kingdom Retail Prices
Index for the one year period preceding the notice.
3.3 Payment Terms. Payment is due as specified in this Agreement irrespective
of whether Licensee has issued a purchase order. If ▇▇▇▇▇▇ ▇▇ provides Licensee
with services under this Agreement that require payment from Licensee in
addition to the annual support and maintenance fee, then Licensee shall pay such
fees and any related expenses within thirty (30) days of receiving Primus KK's
invoice. ▇▇▇▇▇▇ ▇▇ may impose a finance charge of one percent (1%) per month on
amounts not paid within thirty (30) days of their applicable due date.
3.4 Sales Taxes, Etc. Licensee shall be responsible for any applicable sales,
use, or any value added or similar taxes payable with respect to support and
maintenance services, or arising out of or in connection with this Agreement,
other than taxes imposed in Japan based upon Primus KK's income. The fees in
Tables A are exclusive of taxes unless expressly specified.
3.5 Additional License Rights. In the event that Licensee acquires rights under
the License Agreement to additional Authorized Workstations or Authorized Users
("Additional Seats"), ▇▇▇▇▇▇ ▇▇ and Licensee shall both execute an amendment to
this Agreement reflecting the increase in a supplemental Table A (numbered ▇-▇,
▇-▇ and so forth).
3.6 Support and Maintenance on Additional Seats. Licensee shall pay one
calendar year's support and maintenance fees on the Additional Seats at a rate
to be agreed with ▇▇▇▇▇▇ ▇▇ (the "Agreed Rate"). Licensee shall make such
payment at the time it acquires the
Page 22 of 34
Additional Seats. The then current Support and Maintenance Term shall be
automatically extended to the next anniversary of the effective date of the
applicable amendment. On or before the date on which the superceded Support and
Maintenance Term would have expired, Licensee shall pay ▇▇▇▇▇▇ ▇▇ support and
maintenance fees at the Agreed Rate on a pro-rated basis through the end of the
Support and Maintenance Term then in effect, on all Authorized Workstations
and/or Authorized Users other than the Additional Seats.
Section 4. Disclaimer Of Any Implied Warranties
THIS IS A SERVICES AGREEMENT. EXCEPT FOR ANY WARRANTIES SET FORTH IN THE
LICENSE AGREEMENT APPLICABLE TO ANY UPGRADE FURNISHED HEREUNDER, [DISTRIBUTOR]
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
IMPLIED WARRANTY ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR
USAGE OF TRADE.
Section 5. Term and Termination
5.1 Term. The initial Support and Maintenance Term shall begin on the Effective
Date and shall end on its first anniversary.
5.2 Renewal. Notwithstanding the provisions of Section 5.1, this Agreement
shall be automatically renewed for a succeeding Support and Maintenance Term at
the end of each Support and Maintenance Term, unless Licensee provides ▇▇▇▇▇▇ ▇▇
with not less than thirty (30) days prior written notice before the end of the
expiring term of Licensee's decision to not renew this Agreement. Renewals shall
be deemed to include any rate increase of which ▇▇▇▇▇▇ ▇▇ has notified Licensee
in accordance with Section 3.2 above.
5.3 Termination. This Agreement will terminate: 1) upon the expiration or
termination of the License Agreement; 2) upon the expiration of the then current
Support and Maintenance Term and timely receipt by ▇▇▇▇▇▇ ▇▇ of Licensee's
decision to not renew this Agreement; and/or 3) at Primus KK's sole and absolute
discretion, upon failure of Licensee to pay support and maintenance fees when
due.
5.4 Termination on Breach. In the event of a material breach of this Agreement
by either party where no other remedy is specified, the non-breaching party may
terminate this Agreement by giving the breaching party written notice of the
breach and the non-breaching party's intention to terminate. This Agreement
shall automatically terminate sixty (60) days after such notice, unless the
breaching party cures or is making substantial progress in curing the breach or
default before the expiration of the sixty (60) day period.
Section 6. Miscellaneous Provisions
6.1 Miscellaneous Provisions. The dispute resolution and other provisions
contained in Schedule 1 to the Software License Agreement between the parties
are hereby incorporated into this Agreement, and shall for all purposes be
deemed a part of this Agreement.
Page 23 of 34
Primus Contract ID: Eval
------------
PRIMUS KNOWLEDGE SOLUTIONS, INC.
Evaluation Agreement
This Evaluation Agreement ("Agreement") is made between Primus Knowledge
Solutions, Inc. ("Primus"), ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (fax: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇) and
Licensee Name: ("Licensee")
------------------------------
Licensee Address:
---------------------------
---------------------------
Fax No.:
---------------------------
Primus has developed the computer software programs more particularly described
in Table A below (the "Software"). Licensee wishes to evaluate the Software.
Primus is willing to deliver and loan to Licensee one (1) CD-ROM containing the
Software, on the terms and conditions contained in this Agreement. Therefore,
for good and valuable consideration, the receipt and sufficiency of which they
each acknowledge, Primus and Licensee agree to be bound by such terms and
conditions.
EXECUTED as of the date set forth below Primus' signature (the "Effective
Date"):
Primus Knowledge Solutions, Inc. Licensee
By: By:
--------------------------------- ---------------------------------
--------------------------------- ---------------------------------
Its: Its:
-------------------------------- --------------------------------
Dated: Dated:
------------------------------ ------------------------------
Terms and Conditions
Table A -- Software Subject to Evaluation
# Authorized # Authorized Evaluation Term
# Authorized # Authorized Users Users Commencement Evaluation Term
Product Language Servers Workstations (concurrent) (personal ID) Date End Date
------- -------- ------------ ------------ ------------ ------------- --------------- ---------------
SolutionSeries/TM/ Server Japanese N/A N/A N/A
SolutionExplorer/TM/ Japanese N/A N/A N/A
SolutionPublisher/TM/ Japanese N/A N/A N/A
Section 1. Definitions
1.1 "Authorized Server" means that number of servers under the direct care,
custody and control of Licensee specified in Table A above (or such higher
number as Primus may authorize in a written instrument executed by an officer of
Primus) on which Licensee may install and use the Server Software, and whose
location, and whose IP address, host ID and/or disk ID Licensee has provided to
Primus in writing or by email within ten (10) days of the Effective Date.
1.2 "Authorized User" means any employee or individual independent contractor
of Licensee.
Personal ID Users. Where a number of Authorized Users is specified in Table
A as a personal ID user, up to that number of Authorized Users to whom Licensee
has issued personal user IDs and passwords linked to their user ID may use the
applicable Software program. Licensee shall ensure that only one personal user
ID is assigned to each individual Authorized User, and that no more than one
individual Authorized User uses any one personal user ID and linked password.
"Individual" Authorized User means an individual person, and not a corporation,
company, partnership, association or other entity or organization.
Concurrent Users. Where a number of Authorized Users is specified in Table A
above as a concurrent user, up to that number of individual Authorized Users may
use the applicable Software program on a concurrent user basis by accessing the
Authorized Server.
1.3 "Authorized Workstation" means a computer workstation under the care,
custody and control of Licensee, used by an Authorized User.
1.4 "Client Software" means that portion of any client/server Software program
that is designated in the Documentation for use on an Authorized Workstation.
1.5 "Evaluation Term" means the evaluation period specified in Table A above
(or such longer period as Primus may authorize in a written instrument executed
by an officer of Primus), unless sooner terminated pursuant to Section 6.
Section 2. Rights To Use Software.
2.1 Grant of License. Subject to the provisions of this Agreement, Primus
grants to Licensee for the Evaluation Term a non-exclusive, non-transferable
license, without right to sub-license, and solely to evaluate the Software to:
(i) install the Server Software on the Authorized Server and to reproduce,
distribute and install the Client Software on up to that number of Authorized
Workstations specified in Table A; (ii) use and allow up to that number of
Authorized Users specified in Table A to use the Server Software on the
Authorized
Page 24 of 34
Server; (iii) use and allow Authorized Users to use the Client Software on the
Authorized Workstations; and (iv) use and allow Authorized Users to use the
Software documentation in conjunction with their use of the Software.
2.2 Reservation. All rights to the Software and related documentation not
expressly granted to Licensee in this Agreement are reserved by Primus. Without
limiting the generality of the foregoing, Licensee shall use the Software only
for the purposes specified in Section 2.1 and in accordance with the following:
(a) Modifications. Licensee shall not modify the Software nor the related
documentation.
(b) No Conveyance of Ownership; Trade Secrets. This Agreement does not
convey to Licensee ownership of the Software or related documentation or any
media delivered to Licensee on which the Software is stored, but only the right
to use the Software and related documentation as provided in this Agreement.
Licensee acknowledges that the Software (including without limitation its
structure, organization and code), the documentation and all technical data and
information associated therewith constitute trade secrets and are the valuable
property of Primus and its licensors and that the Software and Documentation are
protected by international copyright and trademark rights.
(c) Trademarks. Licensee shall not remove, obscure or alter any notice of
copyright, patent, trade secret, trademark or other proprietary right appearing
in or on any Software and/or related documentation and shall ensure that each
copy of all or any portion of the Software and/or such documentation made by
Licensee includes such notices. Licensee shall clearly indicate the ownership of
Primus' trademarks by Primus whenever it uses such trademarks.
(d) Reverse Engineering. Except to the extent (if any) permitted by
applicable law, Licensee shall not decompile, or create or attempt to create, by
reverse engineering or otherwise, the source code from the object code supplied
hereunder or use it to create a derivative work.
2.3 Expiration of License. Unless otherwise agreed to by the parties in
writing, upon expiration of the Evaluation Term Licensee shall immediately (i)
remove all copies of the Software and (ii) return all copies of the Software,
any other tangible media containing the Software and the documentation to
Primus.
Section 3. Non-Disclosure.
Licensee shall not disclose to any person or entity any information about the
Software or other Primus confidential information that is furnished to or
otherwise becomes known to Licensee, except that Licensee may disclose such
information on a need to know basis to its employees who are obligated to
maintain the confidentiality of such information. Licensee's obligation to
maintain the confidentiality of such information shall not apply to information
which (a) was known to Licensee before receiving such information, (b) is in the
public domain, (c) is received by Licensee from a third party who was legally
entitled to make an unrestricted disclosure, or (d) Licensee independently
develops.
Section 4. Disclaimer.
Licensee accepts the Software AS IS and WITH ALL FAULTS, DEFECTS AND ERRORS.
PRIMUS SHALL HAVE NO LIABILITY FOR ANY ERROR, OMISSION OR DEFECT IN THE
SOFTWARE. PRIMUS MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, OR WARRANTY ARISING FROM COURSE OF DEALING OR
TRADE USAGE.
Section 5. Limitation of Damages.
PRIMUS SHALL NOT HAVE, AND LICENSEE RELEASES PRIMUS FROM, ANY LIABILITY (WHETHER
IN CONTRACT, TORT, UNDER STATUTE OR OTHERWISE) FOR ANY DAMAGES INCURRED BY
LICENSEE ARISING OUT OF THIS AGREEMENT AND/OR USE OF THE SOFTWARE, INCLUDING
WITHOUT LIMITATION ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL
DAMAGES OR LOSS OF DATA, SAVINGS, OR PROFITS, EVEN IF PRIMUS HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
Section 6. Termination
6.1 Termination on Notice. Either party may terminate the Evaluation Term at
any time by giving the other not less than thirty (30) days prior written notice
of termination.
6.2 Termination on Breach. In the event of a material breach or default under
this Agreement by either party, the non-breaching party may terminate the
Evaluation Term immediately by giving the breaching party written notice of the
breach or default and the non-breaching party's intention to terminate.
Section 7. Dispute Resolution.
7.1 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the internal laws of the State of Washington, USA, and, where
such laws are preempted by the laws of the United States, by the internal laws
of the United States, in each case without regard to (a) conflicts of laws
principles and renvoi and (b) the applicability, if any, of the United Nations
Convention on Contracts for the International Sale of Goods.
7.2 Arbitration. In the event of any controversy or claim arising out of or
relating to this Agreement or the breach or interpretation thereof, the
controversy or claim shall be determined by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association by a
single, disinterested arbitrator appointed in accordance with such Rules. The
determination of the arbitrator shall be final, conclusive and binding.
Judgment upon the award rendered may be entered in any court of any state or
country having jurisdiction.
7.3 Conduct. Each party shall ensure that any mediation and arbitration are
conducted as speedily as is reasonably possible, and that all and any
information disclosed during or in connection with the arbitration is treated by
each party with the strictest confidence.
7.4 Interim and Permanent Relief. Upon the application of either party to this
Agreement, and whether or not an arbitration or mediation has yet been
initiated, all courts having jurisdiction over one or more of the parties are
authorized to: (i) issue and enforce in any lawful manner such temporary
restraining orders, preliminary injunctions and other interim measures of relief
as may be necessary to prevent harm to a party's interests or as otherwise may
be appropriate pending the conclusion of arbitration proceedings pursuant to
this Agreement; and (ii) enter and enforce in any lawful manner such judgments
for permanent equitable relief as may be necessary to prevent harm to a party's
interests or as otherwise may be appropriate following the issuance of arbitral
awards pursuant to this Agreement.
Page 25 of 34
7.5 Venue. Any arbitration conducted under or in connection with this
Agreement shall take place in Seattle, Washington at a time and location to be
determined by the arbitrator.
7.6 Legal Expenses. If any proceeding is brought by either party to enforce or
interpret any term or provision of this Agreement, the substantially prevailing
party in such proceeding shall be entitled to recover, in addition to all other
relief arising out of this Agreement, such party's reasonable attorneys' and
other experts' (including without limitation accountants) fees and expenses.
Section 8. Miscellaneous.
8.1 Equitable Relief. Each of the parties acknowledges that damages will be an
inadequate remedy if any other violates the terms of this Agreement pertaining
to protection of intellectual property rights, or otherwise fails to perform its
obligations hereunder. Accordingly, subject to Section 7 of this Agreement,
each of the parties shall have the right, in addition to any other rights each
of them may have, to obtain in any court of competent jurisdiction, temporary,
preliminary and permanent injunctive relief to restrain any breach, threatened
breach, or otherwise to specifically enforce any of the obligations in this
Agreement.
8.2 Waiver. No waiver of or with respect to any provision of this Agreement,
nor consent by a party to the breach of or departure from any provision of this
Agreement, shall in any event be binding on or effective against such party
unless it be in writing and signed by such party, and then such waiver shall be
effective only in the specific instance and for the purpose for which given.
8.3 Severability; Invalidity. If any provision of this Agreement is held to
be invalid, such invalidity shall not render invalid the remainder of this
Agreement or the remainder of which such invalid provision is a part. If any
provision of this Agreement is so broad as to be held unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
8.4 Assignment. Licensee shall not assign any of its rights this Agreement.
Subject to the foregoing restriction on assignment by Licensee, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
8.5 Notices. Any notice or other communication under this Agreement given by
either party to the other party shall be deemed to be properly given if given in
writing and delivered (i) by facsimile transmission (receipt confirmed) or (ii)
by nationally recognized overnight courier (e.g., Federal Express), properly
addressed and prepaid, to the recipient at the address identified in its
signature block to this Agreement. Any party may from time to time change its
address by giving the other par-ties notice of the change in accordance with
this Section.
8.6 Entire Agreement; Amendments. This Agreement constitutes and embodies the
entire agreement and understanding between the parties with respect to the
subject matter hereof and supersedes all prior or contemporaneous written,
electronic or oral communications, agreements or understandings between the
parties with respect thereto. This Agreement may not be modified or amended
except by a written instrument executed by the parties, except that Primus may
increase or extend the rights that it has granted to Licensee at any time and
from time to time, in Primus' sole and absolute discretion, as evidenced solely
by a written document executed by any vice president of Primus. In the event of
any conflict between the provisions of this Agreement and the terms of any form
of purchase order or invoice, the provisions of this Agreement shall prevail.
8.7 English Language. The governing language for this Agreement, for the
transactions contemplated hereby, for any notices, instruments or other
documents or media transmitted or delivered hereunder, and for the negotiation
and/or resolution of any dispute or other matter between the parties, shall be
the English language. In the event of any conflict between the provisions of
any instrument, document, or other media and an English version thereof, the
provisions of the English version shall prevail. Licensee hereby waives all and
any rights it may have under any law in any country to have the Agreement
written in any language other than English. In transactions between the
parties, a decimal point shall be indicated by a period, and not by a comma.
Notice periods shall be determined by reference to the local time of the notice
recipient.
Page 26 of 34
PRIMUS KNOWLEDGE SOLUTIONS, INC.
Software Marketing and Distribution Agreement
Schedule 3
Secondline Support
Section 1. Definitions.
For the purposes of this Schedule, the following capitalized words and phrases
shall be ascribed the following meanings:
1.1 "Error" means the failure of any Software program to conform in any
-----
material respect to its published Documentation.
1.2 "Fix" shall mean a modification or an addition to a Software program or its
---
Documentation that overcomes an Error when made or added to such program or
Documentation.
1.3 "Workaround" means a set of procedures that Distributor may follow to
----------
circumvent or mitigate the impact of an Error, notwithstanding that the Error
still exists. Primus may provide a Workaround in lieu of a Fix in Primus' sole
discretion.
1.4 Other Defined Terms. Other capitalized words and phrases shall have the
-------------------
meanings ascribed to them in Section 1 of the Software Marketing and
Distribution Agreement of which this Schedule is part.
Section 2. Primus' Provision of Secondline Support.
2.1 Technical Support. Primus shall provide telephone, fax and electronic
-----------------
support to Distributor from its Seattle office regarding use of the Software and
resolution of Errors Monday through Friday from 6.30 a.m. to 5:30 p.m. local
time at such office. In addition, Primus shall make on-call technical support
staff available for High Priority situations (as defined in Section 2.2.1 below)
twenty-four (24) hours a day, seven (7) days a week. Primus shall provide such
support to up to two (2) support contacts designated by Distributor who shall be
knowledgeable in all aspects of Distributor's and End Users' operating
environments.
2.2 Support Response. Primus will assign all Distributor requests for Error
----------------
support one of three response priorities. The priorities will dictate the timing
and nature of the response as follows:
2.2.1 High Priority. A major feature/function of the Software is not working
or the system integrity is at risk.
Response Goal: Primus shall use all commercially reasonable efforts to provide
a Fix or Workaround to Distributor within forty eight (48) hours of
Distributor's report of the problem. If Primus cannot provide the Fix or
Workaround within the forty-eight (48) hours Primus will dedicate resources to
the problem resolution and will inform Distributor on a daily basis of the
resolution status.
2.2.2 Medium Priority. An End User's work flow is inhibited or a non-major
feature/function of the Software is not working.
Response Goal: Primus shall use all commercially reasonable efforts to provide
a Fix or Workaround to Distributor within four (4) business days of the
Distributor's report of the problem. If Primus cannot resolve the problem within
the four (4) business days, Primus will inform Distributor on a weekly basis of
the resolution status.
2.2.3 Low Priority. An End User has a problem which is not seriously
impacting Distributor's workflow.
Response Goal: Primus shall use all commercially reasonable efforts to provide
a Fix or a Workaround to Distributor within seven (7) business days of
Distributor's report of the problem. If Primus cannot resolve the problem within
the seven (7) business days, Primus will provide Distributor with a status
evaluation regarding the ultimate resolution.
2.3 On-Site Visits. If Primus and Distributor mutually determine that Primus
--------------
may more effectively resolve a High Priority Error with an on-site visit to
Distributor's or the End User's relevant location, then Distributor shall be
responsible for Primus' reasonable travel and living expenses incurred in
conducting such visit. If Distributor requests Primus to attend on-site for any
other purpose, and Primus agrees, then Distributor shall pay Primus for Primus'
services on a time and materials basis, at Primus' then current daily rates for
the Territory, and shall reimburse Primus for Primus' reasonable travel and
living expenses.
2.4 Access to Primus' Knowledgebase. To the extent reasonably determined
-------------------------------
necessary by Primus, Primus shall provide Distributor with access to Primus'
knowledgebase of solutions to Software Errors. Distributor shall comply with
Primus' reasonable security precautions related to such access, and shall treat
all knowledgebase information as Confidential Information of Primus; provided,
however, that Distributor may disclose Error solutions to End Users as part of
its End User Maintenance obligations, but only as confidential information under
an effective non-disclosure agreement between Distributor and the End User.
2.5 Distributor Cooperation. Distributor acknowledges that Primus may not be
-----------------------
able to resolve an Error if Distributor and any affected End User do not use all
commercially reasonable efforts to cooperate with and assist Primus in resolving
the Error (including, without limitation, in replicating the Error, in
retrieving workstation, server and log file data relating to the Error, and in
providing Primus with remote access to Distributor's or the End User's
installation for support purposes).
2.6 Scope of Secondline Support Services. Primus shall have no obligation to
------------------------------------
correct Errors or support queries arising from any misuse or alteration of the
Software by any Person other than Primus, failure or fluctuation of electrical
power, maintenance of the Software by anyone other than Primus or Primus'
authorized representatives, or the combination or merging of the Software by any
Person other than Primus with any hardware or software not identified as
compatible by Primus. Primus shall have no obligation to correct Errors or
support Software programs except with respect to the then current and next last
current "Major Releases." "Major Releases" means a new release of a Software
program with a change in the YY component of that Software program's X.YY.ZZ
version number. It shall be a condition to Primus' provision of Secondline
Support that Distributor shall be current on its Support and Maintenance fee
payments for all of the Software.
Page 27 of 34
PRIMUS KNOWLEDGE SOLUTIONS, INC.
Software Marketing and Distribution Agreement
Schedule 4
Initial Sub-Distributors
Initial Sub-Distributors
------------------------
Page 28 of 34
PRIMUS KNOWLEDGE SOLUTIONS, INC.
Software Marketing And Distribution Agreement
Schedule 5
Upstream Supplier Software Warranties
A. Knowledge Broker Solution ("KBI") Support Suite Warranties
1. Media. The media on which the KBI Software is delivered by Primus will be
-----
free from defects in materials and workmanship for a period of ninety (90) days
beginning on the date of shipment by Primus.
2. Performance; Year 2000. The KBI Software as delivered by Primus: (i) will
----------------------
perform in all material respects in accordance with the applicable
specifications set forth in the applicable Documentation for a period of ninety
(90) days beginning on the date of shipment by Primus; and (ii) is "Year 2000
Compliant." Year 2000 Compliant means, for the purposes of this paragraph A.2,
that the KBI Software, when used with accurate date data and in accordance with
its associated documentation, is capable of properly processing date data from,
into and between the twentieth and twenty-first centuries, including the years
1999, 2000 and leap years, provided that all other products (e.g., hardware,
software and firm-▇▇▇▇) used with it properly exchange date data with the KBI
Software.
3. Infringement. To Primus' knowledge, use in accordance with this Agreement of
------------
the KBI Software as delivered by Primus to Distributor does not infringe any
valid copyright, patent or trademark existing under the laws of the Territory.
------------------------------------------------------------------------------
B. Seagate Crystal Info v.6 Warranties
1. Media. The media on which the Seagate Software is delivered by Primus will be
-----
free from defects in materials and workmanship for a period of ninety (90) days
beginning on the date of shipment by Primus.
2. Performance; Year 2000. The Seagate Software as delivered by Primus: (i) will
----------------------
perform substantially in accordance with the applicable specifications set forth
in the applicable Documentation in all material respects for a period of ninety
(90) days beginning on the date of shipment by Primus; and (ii) is "Year 2000
Compliant." Year 2000 Compliant means, for the purposes of this paragraph B.2,
that the Seagate Software will (i) under normal use and service, record, store,
process, and present calendar dates falling on or after January 1, 2000, in the
same manner, and with the same functionality, as such Seagate Software do with
dates falling on or before December 31, 1999; and (ii) lose no functionality
with respect to the introduction of records containing dates falling on or after
January 1, 2000. Notwithstanding the foregoing, if the date related
functionality of the Seagate Software relies upon the operating system on which
it is running or the software to which it interfaces, then the above limited
warranty applies only to the extent that such operating system and other
software properly exchanges date data with the Seagate Software.
3. Infringement. To the best of Primus' knowledge, use in accordance with this
------------
Agreement of the Seagate Software as delivered by Primus does not infringe any
valid patent or copyright in the Territory, nor any trademark rights of a third
party based on the laws of the United States, Canada, Japan, New Zealand,
Australia, South Africa, or any country in Europe or South America.
Page 29 of 34
PRIMUS KNOWLEDGE SOLUTIONS, INC.
Software Marketing and Distribution Agreement
Schedule 6
Dispute Resolution And Other Provisions
Dispute Resolution
------------------
1.1 Governing Law. This Agreement shall be governed by and interpreted in
-------------
accordance with the internal laws of the State of Washington, and, where such
laws are preempted by the laws of the United States, by the internal laws of the
United States, in each case without regard to (a) conflicts of laws principles,
and (b) the applicability, if any, of the United Nations Convention on Contracts
for the International Sale of Goods. The governing language for this Agreement,
for the transactions contemplated hereby, for any notices, instruments or other
documents or media transmitted or delivered hereunder, and for the negotiation
and/or resolution of any dispute or other matter between the parties, shall be
the English language. In the event of any conflict between the provisions of any
document and an English version thereof, the provisions of the English version
shall prevail. Distributor hereby waives all and any rights it may have under
any law in any country or portion thereof to have the Agreement written in any
language other than English. In transactions between the parties, a decimal
point shall be indicated by a period, and not by a comma. Notice periods shall
be determined by reference to the local time of the notice recipient.
1.2 Mediation. In the event of any controversy or claim arising out of or
relating to this Agreement or the breach or interpretation thereof, the parties
shall, upon five days notice from either one to the other, submit themselves and
the subject-matter of the dispute to mediation before an independent mediator to
be appointed by the head office of the American Arbitration Association. Costs
of mediation shall be borne equally between the parties.
1.3 Arbitration. If the parties remain in dispute following the mediation, then
the controversy or claim shall be determined by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association by a
single, disinterested arbitrator appointed in accordance with such Rules. The
determination of the arbitrator shall be final, conclusive and binding. Judgment
upon the award rendered may be entered in any court of any state or country
having jurisdiction.
1.4 Conduct. Each party shall ensure that any mediation and arbitration are
conducted as speedily as is reasonably possible, and that all and any
information disclosed during or in connection with the arbitration is treated by
each party with the strictest confidence.
1.5 Interim and Permanent Relief. Upon the application of either party to this
Agreement, and whether or not an arbitration or mediation has yet been
initiated, all courts having jurisdiction over one or more of the parties are
authorized to: (i) issue and enforce in any lawful manner such temporary
restraining orders, preliminary injunctions and other interim measures of relief
as may be necessary to prevent harm to a party's interests or as otherwise may
be appropriate pending the conclusion of arbitration proceedings pursuant to
this Agreement; and (ii) enter and enforce in any lawful manner such judgments
for permanent equitable relief as may be necessary to prevent harm to a party's
interests or as otherwise may be appropriate following the issuance of arbitral
awards pursuant to this Agreement.
1.6 Venue. Any mediation or arbitration conducted under or in connection with
this Agreement shall take place in Seattle, Washington, at a time to be
determined by the mediator or arbitrator, as the case may be.
1.7 Legal Expenses. If any proceeding is brought by either party to enforce or
interpret any term or provision of this Agreement, the substantially prevailing
party in such proceeding (as determined by the arbitrator in its sole
discretion) shall be entitled to recover, in addition to all other relief
arising out of this Agreement, such party's reasonable attorneys' and other
experts' (including without limitation accountants) fees and expenses (as
determined by the arbitrator in its sole discretion.
2. Excused Performance; Force Majeure. If the performance of this Agreement is
----------------------------------
adversely restricted by reason of any circumstances beyond the reason-able
control and without the fault or negligence of the party affected, then the
party affected, upon giving prompt written notice to the other party, shall be
excused from such performance on a day-to-day basis to the extent of such
restriction (and the other party shall likewise be excused from performance of
its obligations on a day-to-day basis to the extent such party's obligations
relate to the performance so restricted); provided, however, that the party so
affected shall use all commercially reasonable efforts to avoid or remove such
causes of non-performance and both parties shall proceed whenever such causes
are removed or cease.
3. Exclusion of Certain Claims. IN NO EVENT SHALL PRIMUS BE LIABLE (WHETHER IN
---------------------------
TORT OR CONTRACT, UNDER STATUTE OR OTHERWISE) FOR ANY INDIRECT, SPECIAL,
CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR
LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION AND THE LIKE,
ARISING OUT OF ITS PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT OR THE USE,
INABILITY TO USE OR RESULTS OF USE OF THE SOFTWARE, EVEN IF PRIMUS HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4. Limitation of Liability. Primus' liability arising out of this agreement
-----------------------
shall in no event exceed the fees paid by Distributor to Primus under this
Agreement.
5. Equitable Relief. Each of Distributor and Primus acknowledges that damages
----------------
will be an inadequate remedy if the other violates the terms of this Agreement,
or otherwise fails to perform its obligations hereunder. Accordingly, subject to
Section 1 of this Schedule, each of them shall have the right, in addition to
any other rights each of them may have, to obtain in any court of competent
jurisdiction, temporary, preliminary and permanent injunctive relief to restrain
any breach, threatened breach, or otherwise to specifically enforce any of the
obligations in this Agreement.
6. Waiver. No waiver of or with respect to any provision of this Agreement, nor
------
consent by a party to the breach of or departure from any provision of this
Agreement, shall in any event be binding on or effective against such party
unless it be in writing and signed by such party, and then such waiver shall be
effective only in the specific instance and for the purpose for which given.
7. Captions and Headings. The captions and headings are inserted in this
---------------------
Agreement for convenience only, and shall not be deemed to limit or describe the
scope or intent of any provision of this Agreement.
8. Severability; Invalidity. If any provision of this Agreement is held to be
------------------------
invalid, such invalidity shall not render invalid the
Page 30 of 34
remainder of this Agreement or the remainder of which such invalid provision is
a part. If any provision of this Agreement is so broad as to be held
unenforceable, such provision shall be interpreted to be only so broad as is
enforceable.
9. Assignment. Distributor shall not assign any of its rights this Agreement
----------
without the prior written consent of Primus, which shall not be unreasonably
withheld. Subject to the foregoing restriction on assignment by Distributor,
this Agreement shall be binding upon, inure to the benefit of and be enforceable
by the parties and their respective successors and assigns. Primus may assign
all or any of its rights to enforce this Agreement to any licensor of Primus.
10. Notices. Any notice or other communication under this Agreement given by
-------
either party to the other party shall be deemed to be properly given if given in
writing and delivered: (i) by facsimile transmission (receipt confirmed); or
(ii) by internationally recognized private courier, (e.g., Federal Express)
properly addressed and prepaid, to the recipient at the address identified on
the first page of this Agreement. Either party may from time to time change its
address by giving the other party notice of the change in accordance with this
Section.
11. Entire Agreement; Amendments. This Agreement constitutes and embodies the
----------------------------
entire agreement and understanding between the parties with respect to the
subject matter hereof and supersedes all prior or contemporaneous written,
electronic or oral communications, representations, agreements or understandings
between the parties with respect thereto. This Agreement may not be modified or
amended except by a written instrument executed by both parties. Only executive
officers of Primus shall have authority to amend this Agreement on behalf of
Primus. In the event of any conflict between the provisions of this Agreement
and the terms of any form of purchase order or invoice (including without
limitation any attached as a schedule or exhibit to this Agreement), the
provisions of this Agreement shall prevail. Distributor's standard terms of
purchase, if any, are inapplicable.
12. Counterparts. This Agreement and any amendments hereto may be executed in
------------
one or more counterparts, which taken together shall constitute a single
agreement between the parties.
Page 31 of 34
PRIMUS KNOWLEDGE SOLUTIONS, INC.
Software Marketing and Distribution Agreement
Schedule 7
Seagate Licensing Restrictions
--------------------------------------------------------------------------------
SEAGATE'S MINIMUM TERMS OF END USER LICENSE
--------------------------------------------------------------------------------
To the extent that the Seagate products are not shipped by Primus subject to a
shrink-wrap or click-wrap license agreement, each End User License must contain
the following minimum (or substantially similar), terms and conditions
applicable to Seagate Products (sometimes for purposes of this Exhibit D, the
"Software"), modified as necessary for multi-copy packages:
APPLICABLE TO ALL SEAGATE PRODUCTS:
----------------------------------
1. GRANT OF LICENSE. The End User is granted a personal, nonexclusive license to
use a single copy of the software program, including any updates, additional
modules, or additional software provided by Seagate in connection therewith (the
"Software") solely for End User's own use in conjunction with the OEM Product or
System, and solely in accordance with the terms and conditions of this license
agreement. End User may copy the Software into the memory of any computer,
solely as necessary to use the Software in accordance with this license
agreement.
2. OEM PRODUCT ACCESS. The license granted is qualified, in that the End User's
licensed copy of the Seagate Software may only be used with the third party
(OEM) product with which it was provided. Accessing data that is not created by,
or used by, the third party (OEM) product is in violation of the End User's
license.
3. THIRD PARTY BENEFICIARY. End User is notified that Seagate Software
Information Management Group, Inc., ("Seagate") is a third-party beneficiary to
the End User License to the extent it relates to use of the Seagate Software.
Such provisions are made expressly for the benefit of Seagate and are
enforceable by both OEM and Seagate.
4. COPYRIGHT AND COPIES. The Software (including any copy thereof), is owned
by Seagate or its suppliers and is protected by United States copyright and
patent laws and international treaty provisions. The Software copy is licensed,
not sold to you, and you are not an owner of any copy thereof. You may either
(a) make one copy of the Software solely for backup or archival purposes, or (b)
transfer the Software to a single hard disk provided you keep the original
solely for backup or archival purposes. You may not otherwise copy the
Software, except as necessary to use the OEM Product or System or as authorized
by applicable law, and you may not copy the written materials accompanying the
Software. Seagate hereby reserves all rights not explicitly granted in this
software license agreement.
5. OTHER RESTRICTIONS. You may not rent or lease the Software, but you may
transfer the Software and accompanying written materials on a permanent basis
provided you retain no copies and the recipient agrees to the terms of this
Agreement. If the Software is an update, any transfer must include the update
and all prior versions. You may not modify or translate the Software. You
may not reverse engineer, decompile or disassemble the Software, except to the
extent expressly authorized by applicable law. End User may not remove, alter
or destroy any form of copyright notice, proprietary markings or confidential
legends placed upon or contained within the Software.
6. DUAL MEDIA. If the Software package contains more than one form of media,
such as a 3.5" diskette and a CD-ROM, then you may use only the media
appropriate for your computer or computer system. You may not use the other
media on another computer or loan, rent, lease, or transfer them to another
except as part of the permanent transfer (as provided above), of all Software
and written materials.
7. NO WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE
Software PROVIDED TO END USER HEREUNDER IS PROVIDED BY SEAGATE "AS IS" WITHOUT
ANY CONDITION OR WARRANTY WHATSOEVER. THE ENTIRE RISK ASSOCIATED WITH THE
INSTALLATION AND USE OF THE Software RESIDES WITH END USER. ALL OTHER
CONDITIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE DISCLAIMED BY SEAGATE,
INCLUDING, WITHOUT LIMITATION, THE IMPLIED CONDITIONS OR WARRANTIES OF
MERCHANTABILITY, OWNERSHIP AND FITNESS FOR A PARTICULAR PURPOSE. SEAGATE SHALL
NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR OTHER
DAMAGES.
8. TERM. This license is effective until terminated. End User may terminate
it at any time by destroying the Software together with all copies,
modifications and merged portions in any form. It will also terminate
automatically upon End user's failure to comply with any term or condition of
this Agreement. In the event of such termination, End User agrees to promptly
destroy the Software together with all copies, modifications and merged portions
in any form.
9. MISCELLANEOUS. The terms and conditions herein state the entire license
agreement with End user relative to any Seagate Software, and supersede any
prior agreement, whether written or oral, relating to the subject matter hereof.
The parties disclaim the application of the United Nations Convention on the
International Sale of Goods. This license agreement is governed by the laws of
the State of California, U.S.A., without reference to conflict of laws
principles. All disputes arising out of this license agreement shall be
litigated or otherwise resolved exclusively in the State of California. End
User may not export or re-export the Software or documentation without the
appropriate United States or foreign government licenses. If any provision of
this license agreement is ruled invalid, such invalidity shall not affect the
validity of the remaining portions of this license agreement.
10. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and accompanying
documentation are deemed to be "commercial computer software" and "commercial
computer software documentation," respectively, pursuant to DFAR Section
227.7202 and FAR Section 12.212, as applicable. Any use, modification,
reproduction release, performance, display or disclosure of the software and
accompanying documentation by the U.S. Government shall be governed solely by
the terms of this license agreement and shall be prohibited except to the extent
expressly permitted by the terms of this license agreement.
End User must affix the following legend to each copy of the Software:
Page 32 of 34
Use, duplication, reproduction, or transfer of this commercial Software and
accompanying documentation is restricted in accordance with FAR 12.212 and DFARS
227.7202 and by a license agreement. Contact Legal Department, Seagate
Software, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.▇.▇.
SPECIFIC SEAGATE PRODUCT USE RESTRICTIONS:
------------------------------------------
A. CRYSTAL INFO:
-------------
INSTALLATION AND USE. Seagate Crystal Info 6.0 is licensed to End User in
a combination of three potential Modules: (1) Client License (2) OLAP
Add-In License and (3) Report/Query Add-In License. Each licensed version
of the Software includes one Administrator ID, which shall correspond to a
single, designated individual (the "Administrator"). The Administrator may
install and use the components as set forth in the Client License, OLAP
Add-In License and Report/Query Add-In License; solely to facilitate
licensed use of the applicable Module(s). The End User must possess an
individual license and accompanying authorized Unique User ID ("UUID")
permitting access to and use of the Module(s) licensed. End User may
install and use (in the manner provided) only the Module(s) (including
their respective components), for which End User has obtained an express
license and accompanying authorized UUID(s). End User may have only as
many UUIDs defined or in use as have been authorized by Seagate, as set
forth in End User's particular license pack. Unless End User's purchase
agreement provides expressly to the contrary, no UUID may be shared by more
than one individual End User.
(1) Client License. Provided the total number of copies used or
--------------
installed at any one time does not exceed the number of licenses
purchased or UUIDs authorized(as set forth in End User's Client
License pack) End User may use the Client License (including the
stated components) to view, schedule and analyze existing reports as
follows: (a) End User may install Info Server, Info Administrator,
Info Views, Info APS, Sentinel, Info Analyzer, Info OLAP Server and
Info Desktop (except that End User may not schedule cubes) on one or
more computers under End User's control, and (b) End User may install
the Info WebAccess Server on one or more web servers to provide access
by authorized End Users via web browser; except that any End User who
is not licensed to use the OLAP Add-In License may not access or use
the Info Worksheet for Java component. Web browser access may be used
in addition to access via Info Desktop client software. Provided one
copy of "client" (but not "server") components of Crystal Info 6.0 is
installed only on the permanent memory of a single desktop computer,
and that computer is used by one authorized End User at least 80% of
the time the computer is in use, that same end user may make one copy
of such client components to use on a portable or home computer
primarily used by such authorized End User.
(2) OLAP Add-In License. End User may install and use the components
-------------------
as set forth in the Client License. Subject to the same use conditions
placed on components of the Client License, End User may install and
use the Info Cube Designer to design OLAP cubes; Info Desktop to
schedule OLAP cubes; and Info Worksheet or Info Worksheet for Java (as
provided in the Info WebAccess Server and Info OLAP Server), to view
and manipulate OLAP cube information. End User may not design reports
unless End User is licensed to use the Report/Query Add-In License.
(3) Report/Query Add-In License. End User may install and use the
---------------------------
components as set forth in the Client License. Subject to the same use
conditions placed on components of the Client License, End User may
install and use Info Report Designer and Info Query Designer to design
reports and queries from relational or multidimensional databases. End
User may use the reports to populate Info Folders of other authorized
End Users.
Page 33 of 34
PRIMUS KNOWLEDGE SOLUTIONS, INC.
Software Marketing and Distribution Agreement
Exhibit A
Distributor's Form of Purchase Order
Attach Distributor's Form of Purchase Order
Page 34 of 34