EXHIBIT 10.9
OEM AGREEMENT
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH "****" AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
1. INTRODUCTION
This Agreement is made and entered into this 31st day of January, 2001 by
and between ▇▇▇▇▇▇ Software, Inc., (hereinafter referred to as "Hyland"), an
Ohio Corporation, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇-▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ and
Recall Corporation a Delaware Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇,▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as "OEM").
2. DEFINITIONS
As used in this Agreement, the following definitions shall apply:
2.1 "Agreement" shall mean this Agreement between Hyland and OEM.
2.2 "Confidential Information" shall mean any information relating to or
disclosed in the course of this Agreement, which is or should be reasonably
understood to be confidential or proprietary to the disclosing party.
"Confidential Information" shall not include information (a) already lawfully
known to the receiving party, (b) disclosed in published materials, (c)
generally known to the public, or (d) lawfully obtained from any third party.
2.3 "Customer(s)" shall mean persons or entities that license Software or
Private Label Software from OEM for their own business, commercial or personal
use, but not for re-marketing, time-sharing or service bureau use.
2.4 "Delivery Date" shall mean the date that OEM receives any component of the
Application Software supplied by Hyland. If the method of delivery is web-based,
Delivery Date shall mean that date on which the Application Software and any
associated license becomes available for download by ASF.
2.5 "Documentation" shall mean written or printed material or material in
non-software media accompanying the Software.
2.6 "Effective Date" shall mean the date upon which both parties to this
Agreement have signed the Agreement.
2.7 "Excluded Customers" are businesses, entities, and or accounts that
license or purchase technology and services from either Fiserv, Inc., a
Wisconsin Corporation or Information Technology, Inc., a Nebraska Corporation,
or are financial institutions that use the Software for check processing
applications, and as further described in Section 6.
2.10 "Primary Support" shall mean and include, among other services as
implemented by OEM, the following services to be provided by OEM to Customer.
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a) Complying with mutually acceptable policies for delivery,
installation, testing, confirmation and acceptance by the Customer
for the original license of the Software and any associated
documentation, applications, and hardware for the successful
operation of the Software.
b) Providing the Customer with a reasonable level of training for use
of the Software and any associated applications and hardware.
c) Providing day-to-day, first point of contact to the Customer for
help and support for Customer's use of the Software.
d) Providing the Customer with on-going Applicable technical advice and
support on using the Software through various means included but not
limited to the telephone.
e) When a Customer reports a Software error, reporting such error to
Hyland, and if available, accessing any help desk or error tracking
system Hyland offers to determine whether the error matches an error
previously reported and whether a Software patch, an upgrade, a
change to the current version of the Software, or other
recommendation has been identified as a response to the error.
f) Providing the Customer a reasonable level of assistance in
installing any available Software patch, upgrade, or version of the
Software or in implementing any recommendation or solution to deal
with Software errors reported to Hyland or not matching those in
▇▇▇▇▇▇'▇ error tracking system.
g) Using reasonable efforts to obtain diagnostic reports, memory
status, and other technical service information, and providing and
employing such diagnostic tools and services as may be required by
the circumstances or as requested by Hyland to aid in resolution of
Software errors.
h) Providing Customer with assistance in implementing fixes or
recommendations as directed or implemented by Secondary Support.
2.11 "OEM" shall mean the company, person, or entity identified in the
Introduction to this Agreement.
2.12 "OEM Product Name" shall mean the software application name(s), trade
name(s), logo(s), icon(s), branding, trade dress and other associated words or
marks selected and provided to Hyland by OEM for use by Hyland in branding the
Private Label Software.
2.13 "Private Label Software" shall mean a version of the Software developed by
Hyland for OEM that includes the OEM Product Name and interface customizations
to other trade modifications as specified by OEM.
2.14 "Private Label Software Fee" shall mean the amounts due and payable by OEM
to Hyland for services that Hyland renders to develop and support the Private
Label Software.
2.15 "Secondary Support" shall mean the following services to be provided by
Hyland to OEM:
a) Using reasonable efforts to assist OEM in providing Primary Support.
b) Using reasonable efforts to support the Software to correct, fix, or
circumvent errors, and modifying documentation, as Hyland shall ▇▇▇▇
appropriate, to respond to reported errors.
c) In the discretion of Hyland, providing updates, enhancements, and
new versions of the Software.
2.16 "Software" shall consist of the computer software products identified in
Schedule A attached to the Agreement and specifically includes the Private Label
Software developed for OEM under the terms of this Agreement.
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2.17 "Software license Agreement" shall mean a written License Agreement
between OEM and a customer relating to the Software.
2.18 "Software License Fee" shall be the amount payable by OEM to Hyland for a
license to Software or Private Label Software granted to a Customer in
accordance with the terms of this Agreement.
2.19 "Software License Fee Schedule" shall mean ▇▇▇▇▇▇'▇ list of available
Software and retail fees for the license of such products to Customers.. A copy
of ▇▇▇▇▇▇'▇ current Software License Fee Schedule, relating to the Software and
Private Label Software, current as of the effective date, is attached as
Schedule A.
2.20 " Software Maintenance Agreement" shall mean a written Agreement between
OEM and a Customer relating to extending the period for Licensor to provide
Customer maintenance, technical support and limited warranty coverage for the
Software, as Further detailed in the attached Schedule C.
2.21 "Software Maintenance Agreement Fees" shall be the amounts payable from
Customer to OHM in consideration for extended Primary Support services pursuant
to an executed Software Maintenance Agreement. A copy of the current Software
Maintenance Fee Schedule is attached to this Agreement as Schedule A.
2.22 "Upgrade or Enhancement" shall mean newer releases of the Software as
developed and commercially released by ▇▇▇▇▇▇.
3. GRANT OF LICENSE
3.1 During the term of this Agreement, Hyland designates the OEM as a
non-exclusive OEM for the Software and Private Label Software under the terms
and conditions of this Agreement. This right is non-transferable and applies
solely to the distribution and licensing of the Software or the Private Label
Software in unaltered, object code version form to Customers. Nothing herein,
including any of the attachments and Schedules, grant any right to OEM to the
use of, or access to, any Software or Private Label Software source code. This
grant does not include any right to otherwise utilize the Software or Private
Label Software or information relating to it or any right to reproduce the
Software or Private Label Software or to make and/or sell variations or
derivative works of the Software or Private Label Software. OEM shall be
permitted to use the Software or Private Label Software for the processing of
data for third parties or for the operation of a service bureau according to the
terms and conditions as established in the Application Service Provider Partner
Agreement.
3.2 Sole ownership of copyrights and other intellectual and proprietary rights
to the Software or Private Label Software shall remain solely with Hyland.
Nothing in the foregoing sentence shall extend to Hyland any rights or interest
in the OEM Product Name, trade names or trademarks provided by OEM to Hyland for
purposes of Hyland developing the Private Label Software. The foregoing sentence
does not extend to OEM any rights in or attach to any of the intellectual
property of Hyland including the structure, technology, Software, "look and
feel" or any other component of the Software. OEM shall retain or affix to the
Software or Private Label Software such evidence of ownership and copyright or
proprietary notices as Hyland may reasonably request and as supplied by Hyland
to protect ▇▇▇▇▇▇'▇ (and ▇▇▇▇▇▇'▇ suppliers) intellectual property rights
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3.3 OEM accepts the grant, in the limited scope provided herein, and agrees to
use its best efforts to communicate the features, benefits, and pricing and
availability of the Software to potential Customers in OEM's ordinary course of
business.
3.4 All parties acknowledge that any expenditures or commitments are made at
the risk of the party making such expenditures or commitments except for the
expenditures and commitments listed in Attachment B of the Application Service
Provider Partner Agreement. OEM agrees that it shall be responsible for its own
expenses and costs under this Agreement and that Hyland shall have no obligation
to reimburse OEM for any expenses or costs incurred by OEM in the performance of
OEM's duties hereunder.
4. PRIVATE LABEL SOFTWARE
4.1 Hyland agrees that it will incorporate into a master copy of the Software
on OEM Product Name and associated marks as provided to Hyland by OEM to develop
the Private Label Software. Hyland shall make reasonable modifications to the
Software and user interface to incorporate and reflect the OEM Product Name
selected by OEM, not to exceed two (2) iterations of such interface changes.
4.2 OEM represents and warrants that it has full rights in and to the OEM
Product Name(s), trademarks, brand names, icons, logos or other marks it
provides to Hyland for developing, licensing, and using as part of the Private
Label Software. OEM is solely responsible for the selection, availability of,
trademark, copyright and all other legal matters surrounding the OEM Product
Name for use in the Private Label Software. OEM agrees that it shall indemnify
Hyland against any and all claims that arise as a result of the use of the OEM
Product Name under the terms contained in Indemnification Section of this
Agreement. OEM grants to Hyland the right to use the OEM Product Name to develop
the Private Label Software and associated materials including its own
promotional and public relations materials.
5. PRIVATE LABEL SOFTWARE LICENSE FEES AND PAYMENT
5.1 OEM shall receive a **** from ▇▇▇▇▇▇'▇ current Software License Fee
Schedule for each copy of the Software, or portion thereof, to Customers. OEM
shall absorb any deviations of actual price from ▇▇▇▇▇▇'▇ list prices. Shipping
charges, federal, state and local sales taxes and any additional expenses are to
be shown on any written purchase order. Hyland reserves the right to revise,
modify or change the Software License Fee Schedule or fees for Software
Maintenance Agreements upon sixty (60) days written notice to OEM.
5.2 OEM shall pay to Hyland an Annual Maintenance Fee equal **** of the list
price of the Software for each copy of the Software licensed to Customers by OEM
for which the customer desires to purchase annual maintenance. Annual
Maintenance contracts are billed prorated to the end of the current calendar
year and renewed January 1 of each subsequent year.
5.3 OEM shall submit purchase orders for Software to Hyland. All purchase
orders submitted to Hyland by OEM shall be subject solely to the terms of this
Agreement, and any preprinted terms on any purchase order form used for the
convenience of OEM shall not alter or amend the terms of this Agreement.
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5.4 ▇▇▇▇▇▇'▇ portion of the Software License Fee is due to Hyland within forty
five (45) days following the Delivery Date from Hyland to the OEM, or if
directed by OEM to do so, from the Delivery Date to the Customer. Payments to
Hyland shall be made by OEM in U.S. funds. In the case of a bona fide dispute
OEM shall notify Hyland as soon as reasonably possible.
5.5 Software shall be shipped by Hyland as a unit, freight to be paid by OEM
upon ▇▇▇▇▇▇'▇ invoice, with risk of loss to pass to OEM upon delivery to OEM,
with a unit being defined as a package provided by Hyland containing Software,
documentation and other Customer information (including warranty materials).
Hyland may select a carrier for OEM, if OEM has not designated a carrier or if
the designated carrier is unable to accept a shipment.
5.6 If OEM shall at anytime be overdue on payments Hyland may require cash on
delivery (COD) or payment in advance. If OEM shall at any time be overdue on
payments, upon ten days' advance notice Hyland may delay shipment of Software
or cancel outstanding orders until OEM is current on all payments. Interest will
be assessed on amounts overdue more than 60 days, at the rate of the 12% per
annum.
5.7 The payment obligations stated in this Section 5 are exclusive of any
shipping charges, federal, state, municipal or other governmental taxes,
duties, excise taxes or tariffs now or hereafter imposed on the production,
storage, sale, transportation, import, export, licensing or use of the Software.
Such charges, shall be paid by OEM or, in lieu of payment of any tax, OEM shall
provide an exemption certificate acceptable to Hyland and the applicable
authority.
5.8 OEM shall keep detailed and accurate records of the all Customer licenses,
sales, and Maintenance Agreements and Fees derived from the use of the Software
and Private Label Software and shall permit Hyland or its representatives
reasonable access to review such records upon request.
6. GRANT OF IN-HOUSE USE LICENSE
Hyland grants to OEM the use of "In-House OHM System(s)" consisting of the
computer software products specifically itemized in the In-House License
Agreement under the following terms and conditions as follows i: OEM agrees that
it will use the In-House OEM System(s) as an internal (in-house) application
primarily for purposes of storing and retrieving OEMs business documents and
data-OEM shall not utilize the In-House OEM System(s) for the processing of any
customer or third party data for any reason. ii. For each and every In-House
System(s) installed by OEM, it shall execute with Hyland a Software License
Agreement and Extended Warranty and Maintenance Agreement covering all
components. iii; In the event of termination of the OEM Agreement for any
reason, OEM agrees to either promptly return the In-House OEM System(s) or
immediately make payment in full for all Software License Fees.
7. SOFTWARE LICENSE AGREEMENTS
OEM may grant licenses for the Software or Private Label Software to Customers,
except to Excluded Customers as provided below, only under a valid Agreement
containing substantially the identical terms as those set forth in ▇▇▇▇▇▇'▇ form
of Software License Agreement, as it may be in effect from time to time. OEM may
comply with this provision by using the form Software License Agreement provided
by
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Hyland (attached hereto as Schedule B) or by preparing its own form of Software
License Agreement that complies with the requirements of this Section. In the
event OEM prepares its own form Software License Agreement for the Software or
Private Label Software, prior to its use with any Customer, it shall submit such
form to Hyland for approval, which approval shall not be unreasonably withheld.
Hyland reserves the right to modify the Software License Agreement. Hyland
reserves the right to specify that Software or Private Label Software supplied
to Customers by OEM is subject to restrictions to be stated in the Software
License Agreement forms. Hyland shall establish the list prices for all Software
License Fees; however, OEM shall have the right to set all prices charged to
Customers.
8. SOFTWARE MAINTENANCE AGREEMENTS
OEM may enter into Software Maintenance Agreements to extend the period of
limited warranty coverage and maintenance to Customers who are licensed to use
the Software or Private Label Software under a Software License Agreement
pursuant to Section 7. OEM may do so only under a valid Software Maintenance
Agreement containing substantially the identical terms as those set forth in
▇▇▇▇▇▇'▇ form of Software Maintenance Agreement, as it may be in effect from
time to time. OEM may comply with this provision by using the form Software
Maintenance Agreement provided by Hyland (attached hereto as Schedule C) or by
preparing its own form of Software Maintenance Agreement that complies with the
requirements of this Section. In the event OEM prepares its own form Software
Maintenance Agreement for the Software or Private Label Software, prior to its
use with any Customer, it shall submit such form to Hyland for approval, which
approval shall not be unreasonably withheld. Hyland reserves the right to modify
the Software Maintenance Agreement, Hyland reserves the right to specify that
Warranty and Maintenance services provided to Customers by OEM is subject to
restrictions to be stated in the Software Maintenance Agreement forms. Hyland
shall establish the list prices for all Software Maintenance Fees, however, OEM
shall have the right to set all prices charged to Customers.
9. EXCLUDED CUSTOMERS
Hyland has entered into an agreement with Fiserv, Inc., a Wisconsin Corporation,
and Information Technology, Inc. (ITI), a Nebraska Corporation, whereby Hyland
granted to Fiserv, Inc. and ITI an exclusive worldwide rights to license and
distribute Software to; 1) customers and accounts of Fiserv, Inc. and ITI, end
2) financial institutions (i.e. banks, saving and loan institutions, and credit
unions) for applications that are primarily designed for the processing of
checks. OEM agrees to take all reasonable steps to refrain from representing,
marketing, or licensing any Software or Private Label Software to any and all
Excluded Customers under this provision. In the event that OEM is unaware of the
status of a prospective Customer for the Software or Private Label Software
relative to this provision, he shall make a reasonable inquiry to determine
whether or not the prospective Customer is an Excluded Customer. In the event
OEM learns that such account is an Excluded Customer, OEM shall discontinue any
and all marketing and sales activity with regards to the Excluded Customer.
10. USE OF COPYRIGHTS AND TRADEMARKS.
Hyland grants to OEM a non-exclusive right and license to use its trademarks
(▇▇▇▇▇▇ Software(tm) and OnBase(R) for purpose of marketing the Software only:
(1) in signs and stationary of OEM indicating its status as an authorized OEM,
(2) in such marketing materials as Hyland may choose to supply to OEM, and (3)
in such advertising and other uses as Hyland may authorize in writing. OEM may
not use the trademarks in connection with any goods other than those of Hyland.
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11. TITLE TO SOFTWARE:
11.1 With the exception of the OEM Product Name, all rights, title and interest
in and to the Software or Private Label Software, at all times, shall remain the
sole and exclusive property of Hyland. No right to use, print, copy, display, or
alter the Software or Private Label Software, in whole or in part, is hereby
granted, except as expressly provided in this Agreement. No ownership right is
granted to any intellectual property relating to the Software or Private Label
Software. No right is granted to OCM to use, distribute, rent, lease, lend,
supply, or market Software or Private Label Software, except as expressly
provided in this Agreement, OEM may not disassemble, extract any source code
from, or reverse engineer the Software or Private Label Software.
11.2 All copies of the Software or Private Label Software, including listings,
compilations, partial copies, or updates, are the property of Hyland and OEM's
obligations with respect thereto shall survive this Agreement until such time as
all said copies have been returned to Hyland or destroyed. OEM agrees to include
any notices, including any proprietary notices, copyright notices and restricted
rights legends appearing on the Software or Private Label Software, or supplied
from time to time by Hyland on any such copies.
12. OEM'S REPRESENTATIONS
OEM represents that it has skill in sales and marketing, and that it also has
sufficient qualified staff and financial resources to carry out all of its
obligations under this Agreement including the obligations for providing Primary
Support of the Software to the Customer. OEM represents and warrants that it has
the required rights in and to the OEM Product Name provided to Hyland for use
with Private Label Software, and such OEM Product Name does not infringe on the
intellectual property right of any third parties.
13. RESPONSIBILITIES OF OEM
13.1 OEM agrees to professionally perform the services as required for
installation, training, and the provision of Primary Support of the Software for
the Customer as defined in the Section 2.10 of this Agreement. OEM will perform
any and all installation, upgrade, technical services and Primary Support for
the Software pursuant to installation and support procedures and policies as
developed by Hyland and modified from time-to-time. OEM shall require, prior to
completion of installation and training of the Software to any Customer, that
Customer execute a Software License Agreement in accordance with Section 4 of
this Agreement. A copy of the Software License Agreement is attached as Schedule
B.
13.2 OEM will, upon request, promptly report to Hyland the results for each and
every installation and upgrade or Primary Support activity and deliver to Hyland
any forms, reports, or checklists as Hyland may require its OEM's to complete as
part of an installation, upgrade or provision of the Primary Support of the
Software.
13.3 OEM shall identify and promptly inform Hyland of any design or programming
errors or omissions in the Software of which it becomes aware.
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13.4 OEM may request Hyland to directly perform installation and training
services for a Customer. In no event shall Hyland be obligated to do so. In the
event that Hyland elects to perform installation and training services to the
Customer, this shall not relieve OEM from any of its obligations to provide
Primary Support to the Customer.
13.5 If OEM performs the installation and training services for the Customer,
OEM shall invoice Customer for such services and all revenues and expenses
associated with these activities shall be OEM's. However, if OEM elects to have
Hyland perform the installation and training of the Software for the Customer,
than Hyland shall be entitled to invoice and collect from the OEM the fees
Hyland customarily charges for such services. The current fees, expenses and
conditions for Hyland to perform installation and training services are included
in the Software License Fee Schedule attached to this Agreement as Schedule A.
If OEM fails to perform its Primary Support obligations Hyland shall be entitled
to perform the primary support and will receive all of the associated
maintenance fees. Hyland reserves the right to revise, modify or change the fees
for installation and training upon one hundred eighty (180) days written notice
to OEM.
13.6 To perform OEM's technical obligations under this provision, OEM agrees to
maintain at all times on its staff a fully trained and Hyland certified
technical support representative who is able to perform the duties assumed by
OEM for providing installation, training and provision of Primary Support for
the most current versions of the Software. Any and all costs associated with
OEM's training and ongoing education to comply with this provision are to be
solely borne by OEM.
13.7 To perform OEM' s marketing obligations under this Agreement, OEM will
employ and maintain at least one full-time sales person; maintain a
demonstration system for the Software at OEM sales location(s) to provide
customers with a demonstration of the Software; identify prospects, coordinate
demonstrations, conduct seminars, obtain survey information, prepare proposals,
and promote and secure Software License Agreements for the Software. OEM shall
use its best efforts to promote and market the Software. OEM shall pursue any
marketing leads received from Hyland. Upon the request of Hyland, OEM shall
provide to Hyland a forecast of anticipated Software license fee revenue and the
anticipated Software installations and the period of time the installation(s)
would need to be completed.
13.8 OEM assumes sole responsibility for the selection and recommendation of
the Software to achieve the desired results and business purposes of Customer.
OEM shall use its best effort to assist Hyland in the protection of its legal
rights and to enforce the Software License Agreement.
13.9 OEM represents and agrees that it will not make any representations or
create any warranties, expressed or implied, concerning the Software products,
except as specifically provided to OEM by Hyland and under the terms and
conditions of the Software License Agreement. OEM will take reasonable steps to
insure that it's employees, agents, and others under its direction, abide by the
terms and conditions of this provision and this Agreement. OEM may rely upon
those representations contained in the Software brochures and technical
publications provided by Hyland for OEM's presentations.
13.10 OEM shall comply with all applicable laws, ordinances, rules and
regulations, and OEM shall obtain any and all permits, licenses, authorization,
and/or certificates that may be required in any jurisdiction or any regulatory
or administrative agency in connection with the sale, use and/or operations of
the Software. Regardless of any disclosure made by OEM to Hyland of an ultimate
destination of the Software, OEM agrees not to export either directly or
indirectly any Software or system incorporating
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such Software without first obtaining a license to export or re-export from the
United States Government, as may be required and to comply with the United
States Government export regulations, as applicable.
13.11 OEM agrees that during the term of this Agreement, OEM will not, directly
or indirectly, develop, have an ownership interest in, consult, train or engage
others to develop, any computer program or software product that is primarily
designed to compete with the Software. OEM shall be permitted to resell,
integrate, upgrade and otherwise represent and market competitive products to
the Software, and develop or program external programs to assist or enhance the
Software or competitive products.
14. ▇▇▇▇▇▇'▇ OBLIGATIONS
14.1 Hyland shall, under terms of this Agreement and related Schedules, provide
OEM with promotional material and conduct other marketing activities to help
promote the sale of the Software products; advise OEM of the anticipated
delivery date of enhancements to the Software or new modules; keep OEM updated
on any new sales aids or promotional pieces; offer OEM, where appropriate and at
▇▇▇▇▇▇'▇ discretion, education and training courses; assist when requested by
OEM, to contact a prospective customer in regard to features, configuration or
any other general consulting which is required to obtain business.
14.2 Hyland will use its reasonable efforts to make the Software perform
substantially in accordance with the product description set in the
documentation that accompanies the Software, as it may exist from time to time.
However, OEM acknowledges that inevitably some errors may exist in the Software,
and the presence of such errors shall not be a breach of this provision,
▇▇▇▇▇▇'▇ sole obligation with regard to such errors shall be to provide
Secondary Support as stated in this Agreement.
14.3 Hyland will provide to OEM Secondary Support for the Software and make
reasonable consulting services, technical advice end training available to OEM.
Such services will be provided by phone, modem or at ▇▇▇▇▇▇'▇ offices. Such
services will be provided at such times as are mutually agreed upon by the
parties.
14.4 In the event that Hyland offers more favorable pricing to a third-party
who is engaged in substantially the same line of business as OEM/ASP (with
regards to ▇▇▇▇▇▇'▇ software products), Hyland will offer the same terms, in
whole, to ASP. To qualify, OEM/ASP must, retroactively to the Effective Date,
meet all applicable financial terms, including minimum guarantees, pricing for
services, etc. This provision shall exclude terms for partners signed by Hyland
prior to the effective date.
15. ▇▇▇▇▇▇'▇ OPTION TO MODIFY OR DISCONTINUE SOFTWARE
15.1 Hyland has the right, at any time, to make such modifications to the
Software as it sees fit to the operation, performance, or functionality of the
Software, provided however that Hyland will take reasonable precautions to
ensure that OEM and OEM's customers are not negatively affected by such
modifications.
15.2 Hyland has the right, at any time, to discontinue distribution of any or
all Software or versions of Software, to remove supported Software or versions
of supported Software from ▇▇▇▇▇▇'▇ supported Software list, or to discontinue
support, maintenance, or the provision of new versions, updates, or corrections
for any Software or for any version or for any hardware or software
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platform or operating system. If such a termination of distribution of the
Software or of support, maintenance or the provision of new versions, updates,
or corrections materially impairs the value of this Agreement to OEM, OEM shall
have the option to terminate this Agreement; such option to terminate shall be
expire after sixty (60) days from the date notice of termination is given.
15.3. Notwithstanding the forgoing, Hyland will not discontinue support end
maintenance for any major or minor (X or X.x) version release until 18 months
after the release of a newer version.
16. WARRANTY
16.1 Hyland represents and warrants to OEM that is has the necessary rights to
enter into this Agreement and that it has the necessary ownership and
intellectual property rights to the Software to grant the licenses herein.
Hyland warrants that the Software will operate generally in conformance with its
published documentation, if properly used by OEM and Customer. If any errors are
discovered, OEM shall promptly notify Hyland in writing as to the description of
the problem, whereupon Hyland shall use reasonable efforts to correct such
problems within a reasonable time thereafter. Corrections will be provided to
OEM with instructions for implementation. The remedies set forth in this
Agreement shall be OEM's sole remedies for breach of this Agreement.
16.2 THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES,EXPRESSED OR
IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. THE RIGHTS AND REMEDIES GRANTED TO OEM UNDER THIS PARAGRAPH CONSTITUTE
THE SOLE AND EXCLUSIVE REMEDY OF OEM AND OEM'S CUSTOMERS AGAINST HYLAND FOR
BREACH OF WARRANTY, EXPRESS OR IMPLIED, OR FOR ANY ERRORS OR DEFECTS IN THE
SOFTWARE. IN NO EVENT SHALL HYLAND BE LIABLE TO OEM OR OEM'S CUSTOMERS FOR ANY
DAMAGES ARISING FROM OR RELATED TO FAILURE OR INTERRUPTION OF THE SOFTWARE, OR
FOR INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFIT OR
OPPORTUNITY, LOSS OF USE OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION
WITH THE LICENSE, TRANSFER OR USE OF THE SOFTWARE. IN NO EVENT SHALL ▇▇▇▇▇▇'▇
LIABILITY HEREUNDER EXCEED THE TOTAL AMOUNT RECEIVED BY HYLAND UNDER THIS
AGREEMENT.
17. INDEMNIFICATION
17.1 Hyland agrees to indemnify OEM against all liability and expense,
including reasonable attorney fees, arising from any breach or alleged breach of
▇▇▇▇▇▇'▇ warranty that it has the required rights to the Software and that the
Software does not infringe any ownership or intellectual property right of a
third party, provided that ▇▇▇▇▇▇: (1) is notified immediately after OEM
receives notice of such claim (ii) is solely in charge of the defense of and any
settlement negotiations with reaped to such claim; (iii) received OEM's
cooperation in the defense or settlement of such claim; (iv) has the right, upon
either the occurrence of or the likelihood (in the opinion of Hyland) of the
occurrence of a finding of infringement, either to procure for OEM or the
Customer the right to continue use of the Software, or to replace the relevant
portions of the Software with other equivalent, non-infringing portions. If
Hyland is unable to accomplish either of the options set forth in (iv) above, at
▇▇▇▇▇▇'▇ option Hyland shall either remove the portion of the Software in issue
and refund to OEM the value of such portion, or remove the entire Software and
refund to OEM the entire amount paid under this Agreement as it relates to the
incident that
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gave rise to the claim. IN NO EVENT SHALL ▇▇▇▇▇▇'▇ LIABILITY HEREUNDER EXCEED
THE TOTAL AMOUNT PAID TO HYLAMD BY OEM. Hyland shall have no obligation to OEM
to defend or satisfy any claims made against OEM that arise from use, marketing,
licensing, or disposition of the Software by OEM other than as permitted by this
Agreement.
17.2 OEM agrees to indemnity Hyland against all liability and expense,
including reasonable attorney fees, arising from or out of any breach or alleged
breach of OEM's representation, warranties, and obligations or as a result of
any claim arising from OEM's activity. This includes, but is not limited to,
misrepresentation or unauthorized commitments, actions, or promises made to
Customers or prospects by OEM, its employees or agents with respect to Hyland,
the Software, Private Label Software or any other product or service marketed by
OEM that gives rise to a claim against Hyland. Further, OEM specifically agrees
to indemnify Hyland against any claims made by any party as a result of OEM's or
▇▇▇▇▇▇'▇ use of the OEM Product Name.
17.3 In the event of a claim where OEM is obligated to defend or indemnify
Hyland pursuant to Section 17.2, Hyland reserves all rights to directly
participate in all aspects in the defense of, and any settlement negotiations
with respect to such claim, including the selection and approval of it's
Counsel; the right to maintain separate and independent Counsel; and to receive
OEM's full cooperation in the defense or settlement of such claim. In such
event when such claim arises, OEM shall be solely responsible for any and all
associated costs, legal fees, and amounts required to discharge a judgment or
for settlement of any such claim under the terms and conditions of this
provision.
18. TERM AND TERMINATION
18.1 This Agreement shall take effect on the Effective Date. Unless sooner
terminated in accordance with the relevant provisions of this Agreement, the
term of this Agreement shall be for five (5) years and shall be automatically
renewed successively for an additional term of one (1) year unless either party,
in its sols discretion, gives notice of termination no less than ninety (60)
days prior to the expiration of then current term.
18.2 In the event that OEM fails to maintain a satisfactory credit rating or
financial condition or if Hyland concludes that for any reason OEM is or will
become unable to discharge its obligations hereunder, Hyland may terminate this
Agreement upon written notice.
18.3 In the event of a filing by or against either party of a petition for
relief under the United States Bankruptcy Code or any similar petition under
the insolvency laws of any jurisdiction, where such filing is not dismissed
within thirty (30) days after the date of the filing, or should OEM discontinue
the business operations relevant to this Agreement, then the other party may
immediately terminate this Agreement upon written notice.
18.4 In addition to provisions authorizing termination hereunder, either party
shall have the right to terminate this Agreement as a result of a material
breach of the Agreement by the other party that is not cured within thirty (30)
days after written notice of such breach.
18.5 Upon termination of this Agreement, and except as otherwise provided in
this Agreement, the license granted to OEM by this Agreement shall be terminated
immediately, OEM shall make no further use of all or any part of the Software or
any Confidential Information received from Hyland, except that
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Hyland at its option shall either (1) permit OEM to license some or all its then
existing inventory of Software to Customers or (2) direct OEM to return to
Hyland or ship to such person or entity as Hyland may specify (at OEM's cost and
risk for shipping) some or all of such inventory for a refund of the amount paid
for such inventory.
18.6 In the event of termination OEM shall cease any public statement or
representation that it is an authorized OEM or that it is in any way involved
with Hyland, and shall immediately cease use of any trademark, or trade name of
Hyland, except as may otherwise be authorized in writing by Hyland.
18.7 In the event of termination Hyland shall not be obligated to, deal with
any Customers who have Licensed the Software
18.8 The provisions of this Agreement concerning Confidential Information,
indemnification, and except as otherwise provided Non-Competition, shall survive
the termination of this Agreement, and termination shall not relieve either
party of the obligation to pay any amount due to the other. It is understood and
agreed that no termination of this Agreement, whatever the cause thereof, shall
in any way terminate, restrict, limit, or affect in any way the right of any
authorized customer to utilize the Software in accordance with the terms of a
Software license Agreement.
19. GENERAL PROVISIONS
19.1 Independent Contractor. OEM is an independent contractor under this
Agreement and nothing in this Agreement authorizes OEM to act as a legal
representative or agent of Hyland for any purpose. It is expressly understood
that this Agreement does not establish a franchise relationship, partnership,
principal-agent relationship, or joint venture. OEM shall not have the power to
bind Hyland with respect to any obligation to any third party, and will make
this fact clear to all prospects and Customers. OEM is solely responsible for
its employees, including terms of employment, wages, hours, required insurance,
and daily direction and control.
19.2 Confidential Information. OEM acknowledges mat it will receive
Confidential Information from Hyland relating to technical and marketing issues
about the Software and the business affairs of Hyland. OEM agrees that all
Confidential Information of Hyland shall be held in strict confidence and shall
not be disclosed or used without express written consent of Hyland. Each party
acknowledges that it will receive Confidential Information from the other party
relating to technical, marketing and business affairs of the other party. Each
party agrees that all Confidential Information of the other party shall be held
in strict confidence and shall not be disclosed or used without express written
consent of the other party.
19.3 Non Governmental, No United States Government procurement regulations or
Federal Acquisition Regulations shall be included hereunder or be binding on
either party unless specifically agreed to in writing prior to incorporation
hereunder. In the event of any sale or license to the United States government,
OEM shall assure that all labeling needed to establish Restricted Rights in Data
with respect to any Software is correctly affixed and intact.
19.4 No Waiver. The failure of either party to exercise any right or the waiver
by either party of any breach, shall not prevent a subsequent exercise of such
right or be deemed a waiver of any subsequent breach of the same of any other
term of the Agreement.
19.5 Notice. All notices, requests, demands or other communications required to
be given pursuant to the Agreement shall be in writing and shall be deemed to
have been given, if sent by U.S. mail, registered
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or certified mail, return receipt requested, postage prepaid, addressed to the
parties at their place of business or to such other addresses as the parties
direct in writing. Notice to Hyland shall be addressed to:
▇▇▇▇▇▇ Software, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇-▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
Attention: President
or to such person or to such address as Hyland may designate.
Notice to OEM shall be addressed to the company, person or entity identified as
OEM in the Introduction to this Agreement.
19.6 Force Majeure. Neither ▇▇▇▇▇ shall be deemed in fault of this Agreement to
the extent that performance of their obligations or attempts to cure any breach
are delayed or prevented by reason of any act of God, fire, natural disaster,
accident, act of government, shortages of materials or supplies, or any other
causes beyond the control of such party provided that such party gives the other
written notice thereof properly and, in any event, within fifteen (15) days of
discovery thereof and uses its best efforts to cure the delay. In the event of
such Force Majeure, the time of performance or cure shall be extended for a
period equal to the duration of the force Majeure but in no event shall exceed
three (3) months.
19.7 Assignment. Hyland may assign this Agreement. This Agreement may not be
assigned by OEM, nor any duty hereunder be delegated by OEM without the prior
written consent of Hyland. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the parties to this Agreement and their
respective heirs, legal representatives, successors and permitted assigns.
19.8 Taxes. OEM shall pay, in addition to the other amount payable under this
Agreement, all local, state and federal excise, sales, use, privilege, personal
property, gross receipts and similar taxes levied or imposed by reason of the
transactions under this Agreement. OEM shall, upon demand, pay to Hyland an
amount equal to any such tax actually paid or required to be collected or paid
by Hyland.
19.9 Limitations of Liability. In the event of failure of either party to
fulfill any of its obligations hereunder, the initial remedy of the other party
under this Agreement shall be to request performance of such obligation. If such
performance a not rendered, the other party may terminate the Agreement and,
subject to section 20, bring an action for any moneys due and payable hereunder
for services rendered. However, either party shall be entitled to enforce its
rights regarding patents, copyrights, trademarks, or trade names, by any
appropriate action, including actions for damages and equitable relief.
19.10 Injunctive Relief. The parties to this Agreement recognize that a remedy
at law for a breach of the provisions of this Agreement relating to Confidential
Information, use of ▇▇▇▇▇▇'▇ trademark, copyright, and other intellectual
property rights, and/or Non-competition, will not be adequate for ▇▇▇▇▇▇'▇
protection, and accordingly Hyland shall have the right to obtain, in addition
to any other relief and remedies available to it, injunctive relief to enforce
the provisions of this Agreement.
19.11 Severability. In the event that a court of competent jurisdiction
determines that any portion of the Agreement is unenforceable, void, invalid or
inoperative, the remaining provisions of this Agreement shall not be affected
and shall continue in effect as though such invalid provisions were deleted.
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19.12 Attorney Fees. In the event a non-defaulting party requires the services
of an Attorney to enforce any provision of this Agreement, said non-defaulting
party shall be entitled to attorney's fees, together with expenses and costs
incurred in connection with such enforcement.
19.13 Governing Law. This Agreement shall be governed and interpreted in
accordance with the substantive law of the State of Ohio, United States of
America.
19.14 Exclusive Jurisdiction and Venue. Any legal action brought concerning this
Agreement or any dispute hereunder, including but not limited to an action to
enforce or challenge an arbitration award, shall be brought only in the courts
of the State of Ohio, in the County of Cuyahoga, or in the federal courts
located in such state (and county). Both parties submit to venue and
jurisdiction in these courts. In the event that an action or claim arises
outside of the exclusive jurisdiction specified herein which names Hyland as a
party, OEM agrees to initiate, consent to and/or cooperate with any and all
efforts to remove the matter to the exclusive jurisdiction named herein, or
otherwise take any and all reasonable actions to achieve ▇▇▇▇▇▇'▇ objectives of
this provision.
19.15 Entire Agreement. This Agreement constitutes the entire Agreement and
understanding of the parties and supersedes all prior and contemporaneous
Agreements, understandings, negotiations and proposals, oral or written. Section
headings are provided for convenience purposes only and do not provide any
modifications or substantive meaning to the terms and conditions of this
Agreement. This Agreement may be amended or modified only by a subsequent
Agreement in writing signed by each of the parties and may not be modified by
course of conduct.
19.16 Binding. This Agreement shall be binding and inure to the benefit of the
parties hereto and their respective successors. In the event OEM enters into an
agreement for the sale of substantially all OEMs assets, this agreement shall be
assignable to the purchaser of substantially all the assets of OEM. This
Agreement is not assignable to any other third party without the expressed
written consent of Hyland. In the event Hyland enters into an agreement to sell
substantially all the assets of Hyland, this agreement shall be binding upon the
purchaser.
Section 20. Mediation; Arbitration.
(a) Resolution by Mutual Agreement. Except for actions instituted
by either party seeking injunctive relief, any issue or dispute between the
parties arising out of or related to this Agreement or its alleged breach shall
first be referred to the Chairman of ▇▇▇▇▇▇ Software and the President of
Recall, for resolution between them, if possible. ▇▇▇▇▇▇ Software and Recall
may, if they desire, consult outside experts or a mutually respected
disinterested person for assistance in arriving at a resolution.
(b) Resolution by Mediation. ▇▇▇▇▇▇ Software and Recall also may,
if they desire, agree to undertake non-binding mediation and may, if they
choose, do so in accordance with the commercial mediation rules of the American
Arbitration Association ("AAA"), either as written or as modified by mutual
agreement. A written agreement to undertake mediation may be made at any time.
If arbitration proceedings have been instituted, they shall be stayed until the
mediation process is terminated.
(c) Resolution by Non-Binding Arbitration. The parties to this
Agreement acknowledge that the subject matter hereof involves substantial
interstate activity. Any issue, controversy
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or claim arising out of or relating to this Agreement or its alleged breach that
cannot be resolved by mutual agreement after a period of thirty (30) days from
when the issue, controversy or claim was first referred for mutual agreement
under paragraph (a) shall be referred by the parties to non-binding arbitration
in Cleveland, Ohio, in accordance with the commercial arbitration rules of the
AAA, and judgment on any award rendered by the arbitrator and accepted by the
parties may be entered by any court having jurisdiction thereof; provided,
however, that the parties shall have the right to agree among themselves on the
amount of the claim.
(d) Selection of Arbitrator.
(1) The arbitrator shall be selected by mutual agreement of
the parties, if possible. If the parties fail to reach agreement upon
appointment of an arbitrator within thirty (30) days following receipt by one
party of the other party's notice of arbitration, the arbitrator shall be
selected from a list or lists of proposed arbitrators submitted by the AAA. The
selection process shall be that which is set forth in the AAA commercial
arbitration rules then prevailing, except that (A) the number of preemptory
strikes shall not be limited and (B) if the parties fail to select an arbitrator
from one or more lists, the AAA shall not have the power to make an appointment
but shall continue to submit additional lists until an arbitrator has been
selected. Initially, however, promptly following its receipt of a request to
submit a list of proposal arbitrators, the AAA shall convene the parties in
person or by telephone and attempt to facilitate their selection of an
arbitrator by agreement. If the arbitrator should die, withdraw or otherwise
become incapable of serving, a replacement shall be selected and appointed in a
like manner.
(2) If an arbitrator has not been selected following
submission of three or more lists by the AAA, either party may declare the
existence of an impasse by giving written notice to the other. In that event,
the arbitrator shall be selected in the following manner: Each party shall
designate three proposed arbitrators whose names appear on any of the lists
previously submitted by the AAA. The parties shall then eliminate five of the
designated names by alternately striking one, and the person whose name remains
shall serve as arbitrator. If necessary, the party to make the first strike
shall be designated by lot.
(e) Confidentiality of Arbitration. All aspects of the arbitration
shall be confidential, and the parties and the arbitrator shall not disclose to
others, or permit disclosure of, any information related to the proceedings,
including but not limited to discovery, testimony and other evidence, briefs and
the award.
(f) Orders Protecting Confidentiality. Upon the motion of either
party, and for good cause shown, the arbitrator may make any order which justice
requires to protect a party from the disclosure of proprietary, privileged or
confidential business information, including orders (1) that depositions or
hearings be conducted with no one present except persons designated by the
arbitrator, and (2) that depositions, exhibits, other documents filed with the
arbitrator or transcripts of the hearing be sealed and not disclosed except as
specified by the arbitrator.
(g) Expenses of Arbitrator. Each party shall pay the fees and
expenses of such party's witnesses and all other expenses connected with the
presentation of such party's case. The cost of the arbitration, including the
fees of the arbitrator and the cost of the record or transcripts thereof, if
any, administrative fees, and all other fees and costs, shall be borne equally
by the parties.
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(h) Understandings of the Parties. THIS NON-BINDING ARBITRATION
AGREEMENT IS MUTUAL AND EACH PARTY CONSCIOUSLY AGREES TO SUBMIT TO NON-BINDING
ARBITRATION. THE PARTIES INTEND THAT THE SCOPE OF THIS ARBITRATION CLAUSE SHALL
BE CONSTRUED AS BROADLY AS POSSIBLE SO AS TO INCLUDE ANY AND ALL DISPUTES/CLAIMS
ARISING OUT OF THE SUBJECT MATTER OF THE AGREEMENT (EXCEPT THOSE SEEKING
INJUNCTIVE RELIEF) AS WELL AS THE RELATIONSHIPS WHICH RESULT FROM THIS
AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS OF MISREPRESENTATION,
CONCEALMENT OF MATERIAL FACTS OR FRAUD AMONG THE PARTIES THAT MAY HAVE PRECEDED
ENTRY INTO THIS AGREEMENT. IN THE EVENT ANY PORTION OF THIS ARBITRATION
PROVISION SHALL BE HELD UNLAWFUL, THEN THE SAME SHALL BE SEVERED FROM THE CLAUSE
AND THIS AGREEMENT, THEREBY SAVING ANY LAWFUL PORTION HEREOF.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives;
Accepted and Agreed:
OEM ▇▇▇▇▇▇ SOFTWARE, INC.
BY: ______________________________ By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ______________________________ Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: ______________________________ Title: CEO
Date: ______________________________ Date: 1-31-01
Schedule B
ONBASE(R) END USER LICENSE AGREEMENT
IMPORTANT-READ CAREFULLY
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be designated by lot.
(e) Confidentiality of Arbitration. All aspects of the arbitration
shall be confidential, and the parties and the arbitrator shall not disclose to
others, or permit disclosure of, any information related to the proceedings,
including but not limited to discovery, testimony and other evidence, briefs and
the award.
(f) Orders Protecting Confidentiality. Upon the motion of either
party, and for good cause shown, the arbitrator may make any order which justice
requires to protect a party from the disclosure of proprietary, privileged or
confidential business information, including orders (1) that depositions or
hearings be conducted with no one present except persons designated by the
arbitrator, and (2) that depositions, exhibits, other documents filed with the
arbitrator or transcripts of the hearing be sealed and not disclosed except as
specified by the arbitrator.
(g) Expenses of Arbitrator. Each party shall pay the fees and
expenses of such party's witnesses and all other expenses connected with the
presentation of such party's case. The cost of the arbitration, including the
fees of the arbitrator and the cost of the record or transcripts thereof, if
any, administrative fees, and all other fees and costs, shall be borne equally
by the parties.
(h) Understandings of the Parties. THIS NON-BINDING ARBITRATION
AGREEMENT IS MUTUAL AND EACH PARTY CONSCIOUSLY AGREES TO SUBMIT TO NON-BINDING
ARBITRATION. THE PARTIES INTEND THAT THE SCOPE OF THIS ARBITRATION CLAUSE SHALL
BE CONSTRUED AS BROADLY AS POSSIBLE SO AS TO INCLUDE ANY AND ALL DISPUTES/CLAIMS
ARISING OUT OF THE SUBJECT MATTER OF THE AGREEMENT (EXCEPT THOSE SEEKING
INJUNCTIVE RELIEF) AS WELL AS THE RELATIONSHIPS WHICH RESULT FROM THIS
AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS OF MISREPRESENTATION,
CONCEALMENT OF MATERIAL FACTS OR FRAUD AMONG THE PARTIES THAT MAY HAVE PRECEDED
ENTRY INTO THIS AGREEMENT. IN THE EVENT ANY PORTION OF THIS ARBITRATION
PROVISION SHALL BE HELD UNLAWFUL, THEN THE SAME SHALL BE SEVERED FROM THE CLAUSE
AND THIS AGREEMENT, THEREBY SAVING ANY LAWFUL PORTION HEREOF.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives:
Accepted and Agreed:
OEM ▇▇▇▇▇▇ SOFTWARE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇ M. By: _______________________________
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇ Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
TITLE: Chief Financial Officer TITLE: CEO
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This End User License Agreement ("▇▇▇▇") is made between ▇▇▇▇▇▇ Software, Inc.
("Hyland"), ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇, an Ohio Corporation, and
the User of this OnBase Software ("Software"). Unless the Software is/was
delivered under a separate license agreement signed by both parties, User's
acceptance and further use of the Software shall indicate User's agreement to be
bound by the terms of this ▇▇▇▇. If User does not agree to be bound by the terms
of this ▇▇▇▇ User should exit the program and discontinue the use of the
Software.
1. LICENSE: Upon payment of the Software license fees, Hyland grants to User
a perpetual, non-exclusive, non-assignable, limited license to the
Software modules licensed by User. User acknowledges that each module of
the Software is licensed for a specific type of use, such as concurrently
or on a specified workstation or by a specified individual and that such
use is controlled by the Software. If User has any questions concerning
permitted use of the software, user should contact Hyland immediately for
clarification. The Software is licensed for use by a single organization
and may not be used for processing of third-party data as a service bureau
or application service provider. User agrees: a) not to remove any Hyland
notices in the Software; b) not to sell, transfer, rent, lease or
sub-license the Software or documentation to any third party; c) not to
modify the Software (except for the customary adaptation of the Software
for its business); and d) not to reverse engineer the Software. Use of
Software or Hardware that reduces the number of Clients directly accessing
or utilizing the Software (sometimes called "multiplexing" or "pooling"
software or hardware) does not reduce the number of Software module
licenses required. The required number of Software module licenses would
equal the number of distinct inputs to the multiplexing or pooling
software or hardware. User may not assign, transfer or sublicense all or
part of this ▇▇▇▇ without the prior written consent of ▇▇▇▇▇▇.
2. OWNERSHIP: Hyland and its suppliers own the Software. No ownership rights
in the Software are transferred to User. User agrees that nothing in this
▇▇▇▇ or associated documents gives it any right, title or interest in the
Software except for the limited express rights granted in this ▇▇▇▇.
3. INSTALLATION, TESTING AND ACCEPTANCE OF SOFTWARE: User is responsible for
hardware and non-licensed software for the installation, operation and
support of the Software. If the Software does not pass acceptance, User
will notify Hyland or its authorized agent in writing of the specific
defect encountered within fourteen (14) days following installation. If
User fails to notify Hyland of any defect in the Software within fourteen
(14) days following installation, it will deemed as User's acceptance of
the Software "as is". If Hyland receives written notice of a defect,
Hyland or its authorized agent will use reasonable efforts to correct the
defect. User may reset the Software to confirm that the defect has been
corrected. If the defect has not been corrected after re-testing. User has
the option to either (1) permit Hyland or its authorized agent to make
further corrections, reserving the rights to terminate this ▇▇▇▇, or (2)
continue to use and accept the Software "as is" waiving any and all claims
resulting from defect, or (3) terminate this ▇▇▇▇. Upon such termination
User will return all Software to Hyland or its authorized agent and Hyland
or its authorized agent will refund the Software license fees actually
paid by User.
4. LIMITED WARRANTY:
a) For a period of 60 days from the date of first installation of the
Software at the User's site, Hyland warrants the media on which the
Software is distributed are free from defects in materials and in
workmanship. Hyland does not warrant that the functions contained in the
Software will meet User's requirements or that the operation of the
Software will be uninterrupted or error free. Due to the inherent
complexity of computer software, User is advised to verify User's work.
Provided that within the 60-day period referred to above, Users returns
the Software with a copy of User's receipt and all agreements, Hyland will
at its discretion either (a) replace the defective media and/or
documentation; or (b) refund the license fee.
b) HYLAND AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EXPRESSED OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANT
ABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE
OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. IN NO
EVENT WILL ▇▇▇▇▇▇ SOFTWARE, INC. OR ITS DIRECT OR INDIRECT SUPPLIERS BE
LIABLE FOR ANY OTHER DAMAGES WHATSOEVER INCLUDING BUT NOT LIMITED TO
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR OTHER
PECUNIARY LOSS ARISING OUT OF USE OR INABILITY TO USE THE SOFTWARE, EVEN
IF HYLAND HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES. USER
SPECIFICALLY ASSUMES RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE TO
ACHIEVE ITS BUSINESS OBJECTIVES.
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c) Hyland and its suppliers are not responsible for any costs including,
without limitation, loss of business profits, business interruption, loss
of business information, the cost of recovering such information, the cost
of substitute Software, or claims by third parties. No oral or written
information given by Hyland, its agents, or employees shall create any
additional warranty. In no case shall ▇▇▇▇▇▇'▇ liability exceed the amount
of the license fee actually paid by User. No modification or addition to
this warranty is authorized unless it is set forth in writing, references
this ▇▇▇▇, and is signed on behalf of Hyland by a corporate officer.
5. MAINTENANCE: Following the expiration of the limited warranty period for
the Software contained in this ▇▇▇▇, User may purchase extended
maintenance, warranty and support services from Hyland or its authorized
agent.
6. TERMINATION: Hyland may terminate this ▇▇▇▇ immediately and any license to
use the Software will automatically terminate without notice if User fails
to comply with any provision of this ▇▇▇▇. Upon termination User shall
return all copies of the Software to Hyland with written notice and
delete, remove, and discontinue any and all use. All disclaimers of
warranties and limitation of liability set forth in this ▇▇▇▇ shall
survive any termination.
7. SEVERABILITY: In the event that a court of competent jurisdiction
determines that any portion of this ▇▇▇▇ is unenforceable, it shall not
affect any other provisions of this ▇▇▇▇.
8. NOTICE: All notices, requests, or other communications required to be
given pursuant to the ▇▇▇▇ shall be in writing with proof of delivery and
shall be addressed to the party at their principal place of business or to
such other addresses as the parties direct in writing.
9. GOVERNING LAW AND JURSIDICTION: The laws of the State of Ohio shall
govern this ▇▇▇▇. If User initiates legal action against Hyland, User
consents to jurisdiction by the state and federal courts sitting in the
State of Ohio, County of Cuyahoga. Conversely, if Hyland initiates legal
action against User, Hyland consents to jurisdiction by the state and
federal courts sitting in the State and County of Users principal place of
business in the United States.
10. ENTIRE AGREEMENT: This ▇▇▇▇ constitutes the entire agreement and
understanding of the parties and supersedes all prior and contemporaneous
agreements, documents, and proposals, oral or written. This ▇▇▇▇ may be
amended or modified only by an agreement in writing signed by each of the
parties and may not be modified by course of conduct.
11. U.S. GOVERNMENT RESTRICTED RIGHTS: The Software is provided with
RESTRICTED RIGHTS, Use, duplication, or disclosure by the Government is
subject to restrictions as set forth in subparagraph (c) of the rights in
Technical Data and Computer Software clause at DFAR 252.227-7013 and the
Commercial Computer Software Restricted Rights FAR 52.277-19(c)(1) and
(2), as applicable. Manufacturer is ▇▇▇▇▇▇ Software, Inc. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
Schedule C
ONBASE(R) INFORMATION MANAGEMENT SYSTEM
SOFTWARE MAINTENANCE AGREEMENT
Copyright (C)▇▇▇▇▇▇ Software, Inc. (Confidential) 18
August 1998
Confidential Treatment Requested
This Agreement is made by and between___________("Reseller") and License named
below.
1. MAINTENANCE AND SUPPORT: Upon payment of the appropriate maintenance fees,
Reseller shall provide ongoing operational support, technical assistance
in error correction, revisions and updates to the OnBase Software designed
or developed by Reseller or Reseller's supplier and released to its other
customers during the term of this agreement. This Agreement does not
pertain to any hardware or third party software regardless of where said
hardware of software was obtained.
2. WARRANTIES: Reseller warrants that during the initial term and any renewal
periods of this agreement, the Software will perform in accordance with
the then current documentation provided License. Reseller's obligation and
liability under this paragraph shall, however, be limited to the
replacement and correction of the Software so that it will so perform.
Reseller shall repair or replace any defects in the Software in a timely
fashion. Defects in the Software are to be determined solely by Reseller.
THE WARRANTIES CONTAINED HEREIN ARE IN LIEU OF ALL OTHER WARANTIES
INCLUDING ANY EXPRESSED ON IMPLIED, RESELLER AND ITS SUPPLIER, ▇▇▇▇▇▇
SOFTWARE, INC. DISCLAIM ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE
IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. IN NO EVENT WILL
RESELLER, ▇▇▇▇▇▇ SOFTWARE, INC. OR ITS DIRECT OR INDIRECT SUPPLIERS
BE LIABLE FOR ANY OTHER DAMAGES WHATSOEVER INCLUDING BUT NOT LIMITED TO,
DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR OTHER
PECUNIARY LOSS ARISING OUT OF USE OR INABILITY TO USE THE SOFTWARE, EVEN
IF RESELLER HAS BEN ADVISED OF TE POSSIBILITIES OF SUCH DAMAGES.
Reseller, ▇▇▇▇▇▇ Software, Inc., and its suppliers are not responsible for
any costs including, without limitation, loss of business profits,
business interruption, loss of business information, the cost of
recovering such information, the cost of substitute Software, or claims by
third parties, No oral or written information given by Reseller, its
agents, or employees shall create a warranty, In no case shall any direct
or indirect suppliers of Reseller bear any liability for any reason
whatsoever and in no case shall Reseller's liability exceed the amount of
the maintenance fee actually paid by License for the current renewal
period. No modification or addition to this warranty is authorized unless
it is set forth in writing, references this software License Agreement,
and is signed on behalf of Reseller by an authorized official.
3. FEES, PAYMENTS, TAXES & CURRENCY: In consideration of Reseller's agreement
to provide the services hereunder, Licensee shall pay to Reseller the
"Maintenance Fees" agreed upon by the parties upon receipt by Licensee of
Reseller's invoice for such amount. In addition to the Maintenance Fee,
Licensee shall pay any taxes (other than income or franchise taxes of
Reseller) resulting from this Agreement or activities hereunder including
without limitations, all sales and use taxes.
4. RENEWAL OF AGREEMENT: The Agreement shall be subject to annual renewal at
the option of the Reseller and upon acceptance by Licensee. Reseller shall
within forty five (45) days prior to each anniversary date of the Warranty
Renewal Date, if it desires to renew its agreement, invoice Licensee for
its then current annual maintenance fee for the Software and License
shall, if it desires such renewal indicate its acceptance through payment
of the amount set forth on said invoice within thirty (30) days of the
date of such invoice.
(Note: In the event that Licensee elects not to renew maintenance by
paying the invoice and at a later date wishes to again purchase
maintenance, a maintenance reinstatement fee will be charged. The
reinstatement fee will be the 120% of the amount that Licensee would have
paid had licensee stayed under maintenance without lapse.)
5. OPERATION: Licensee acknowledges and agrees that it is solely responsible
for the operation, supervision, management, and control of the Software,
including but not limited to providing training for its personnel,
instituting appropriate security procedures, and implementing reasonable
procedures to examine and verify all output before use. Furthermore, the
Licensee is solely responsible for the data and the data and the database
and is responsible for maintaining suitable backups of the database to
prevent date loss in the event of any hardware or software malfunction,
Reseller shall have no responsibility or liability for data loss in
regardless of the reasons for said loss. Reseller shall have no
responsibility or liability for Licensees selection or use of the
Software or any associated equipment.
Copyright (C)▇▇▇▇▇▇ Software, Inc. (Confidential) 19
August 1998
Confidential Treatment Requested
6. SUPPORT: Reseller shall provide on-line modern support for all customers
who enter into this Agreement. The Licensee is required to install a
modern and the appropriate communications software as specified by
Reseller and is responsible for establishing an adequate and/or dedicated
connection with Reseller. Telephone support will be available from the
Reseller to the Licensee Monday to Friday from 9:00am to 5:00pm or as
otherwise provided by Reseller in the normal course of its business. The
Licensee is responsible for all incidental expenses incurred by the
Reseller in conjunction with providing Licensee with support under this
Software Maintenance Agreement.
7. NO WAIVER: No waiver of any breach of any provision of this agreement
shall constitute a waiver of any prior, concurrent or subsequent breach of
the same or of any other provisions hereof and no waiver shall be
effective unless made in writing and signed by an authorized
representative of the party to be charged herewith.
8. EFFECTIVE DATE: This entire agreement shall become effective on the date
accepted and executed by an authorized representative of Reseller.
9. SEVERABILITY: In the event that a court of competent jurisdiction
determines that any portion of this Agreement is unenforceable, said
unenforceability shall not affect any other provisions of this Agreement.
10. NOTICE: All notices, requests, demands or other communications required to
be given pursuant to the Agreement shall be in writing and addressed to
the parties at their places of business or to such other address as the
parties direct in writing.
11. GOVERNING LAW: The laws of the State of Ohio shall govern this ▇▇▇▇
12. ENTIRE AGREEMENT: The parties hereto acknowledge that each has read this
agreement, understands it, and agrees to be bound by its terms. The
parties further agree that this agreement along with the License Agreement
constitute the complete and exclusive written expression of the terms of
the agreement between the parties and supersede all prior or
contemporaneous proposals, oral or written, understandings,
representations, conditions, warranties, covenants, and all other
communications between the parties relating to the subject matter hereof.
The parties further agrees that this agreement may not be explained or
supplemented by a prior existing course of dealings between the parties
pursuant to the license agreement, this maintenance agreement or
otherwise.
This maintenance and support agreement and all its provisions are accepted by:
________________________________ _________________________________________
Company Name ("Licensee") ("Reseller")
By:_____________________________ By:______________________________________
Name & Title Name & Title
________________________________ _________________________________________
Address Address
________________________________ _________________________________________
City, State, Zip City, State, Zip
Copyright (C)▇▇▇▇▇▇ Software, Inc. (Confidential) 20
August 1998