1
Certain confidential portions of this Exhibit were omitted by means of blackout
of the text (the "▇▇▇▇"). This Exhibit has been filed separately with the
Secretary of the Commission without the ▇▇▇▇ pursuant to the Company's
Application Requesting Confidential Treatment under Rule 24b-2 under the
Securities Exchange Act.
EXHIBIT 10.33
DISTRIBUTION AGREEMENT
BETWEEN
INTERACTIVE GROUP, INC.
a Delaware corporation
AND
evosoft SOFTWAREVERTRIEB GmbH
a German corporation
DATED
SEPTEMBER 6, 1996
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DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT ("Agreement") is made as of September 6,
1996 between INTERACTIVE GROUP, INC., a Delaware corporation ("Interactive"),
and EVOSOFT SOFTWAREVERTRIEB GMBH, a German corporation ("Distributor"), who
agree as follows:
1. FACT RECITALS. This Agreement is made with reference to the
following facts:
a. Interactive is the owner of or licensee authorized to use
and distribute certain computer software programs (the "Software" as described
further below).
b. Interactive has agreed to grant to Distributor and
Distributor has agreed to accept from Interactive a distributor's license to
market, sublicense and install the Software (as hereinafter defined) in the
Territory (as hereinafter defined) subject to the provisions and conditions of
this Agreement.
2. DISTRIBUTOR.
▇. ▇▇▇▇▇ of License. Subject to the provisions and conditions
of this Agreement, Interactive hereby grants to Distributor and Distributor
hereby accepts from Interactive a non-exclusive license to sublicense the
Software to end users in the Territory. Interactive will also be granting
several supplemental licenses in the Software to Distributor, including a site
license, a demonstration license and a trial license. The grant of these
supplemental licenses will be pursuant to written license agreements in forms
similar to that which Interactive uses in granting licenses in the Software to
others. While there will be no separate license fee charged for these
supplemental licenses, Distributor shall pay Interactive for costs incurred for
tape media preparation and distribution upon receipt of invoice therefor.
(1) Site License. The site license will include
source code (except for the Kernel Software, which is owned or licensed by
Interactive and which controls, protects and supports the Software, which is
licensed in object code only) for the purpose of demonstration, development and
support on computer systems at Distributor's Munich, Numb erg and Budapest
offices. One (1) set of documentation will be provided for each site.
(2) Demonstration License. The demonstration license
will be Software object code only and will be for notebook or other form of
portable computers for remote demonstration purposes.
(3) Trial License. The trial license will grant
temporary thirty (30) day end user licenses for the Software to allow
prospective end users to evaluate the Software.
3
In addition, Interactive shall also be granting to
Distributor a license in the Software for its own internal use as discussed in
Section 15 below.
b. Appointment. Subject to the provisions and conditions of
this Agreement, Interactive hereby appoints Distributor and Distributor hereby
accepts such appointment as a non-exclusive distributor for the term of this
Agreement with the right to:
(1) market Interactive's INFOFLO software and
associated third party software as Interactive shall designate from time to time
for use with its INFOFLO software, including UniData and SB+ (collectively, the
"Software"), in the countries of Germany and Hungary (the "Territory");
(2) sublicense, market and distribute the Software to
end users in the Territory;
(3) provide maintenance and support services for the
Software to end users in the Territory;
(4) use Interactive's trademarks and other
intellectual property in the Territory in accordance with the provisions of
Section 10 below.
c. Rights Retained by Interactive.
(1) Interactive shall be entitled to open an office
within the Territory in order to support Distributor as well as to make its own
sales of the Software within the Territory.
(2) Interactive in consultation with Distributor
shall establish a control procedure to register prospective end users to help
avoid Interactive and Distributor from competing directly against each other for
any prospective account. The procedure and register will allow either
Interactive or Distributor to confirm the end users they are actively marketing
to and avoid conflicts. Once established, Interactive shall inform Distributor
of the procedure and Distributor shall comply therewith.
d. Other Distributors.
(1) Distributor acknowledges that Interactive has or
may have from time to time in the future other non-exclusive and exclusive
distributors throughout the world, including other non-exclusive distributors
within the Territory. Both parties realize that in light of Interactive's
international distribution of the Software, it is impractical and virtually
impossible for Interactive to ensure that its various distributors are selling
the Software or performing services only within their respective territories.
Accordingly, Distributor agrees that Interactive shall not be liable or
responsible in any way if any of its other distributors promote, sell, service,
support or otherwise market the Software in the Territory.
(2) For accounts sold by Interactive and/or another
distributor within the Territory, if Distributor is involved as the local
implementer, Distributor will receive compensation as shall be agreed upon
between the distributors involved. In addition,
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Distributor will receive one hundred percent (100%) of the revenue from any
services which Distributor performs and which are contracted for by the end
user. Distributor acknowledges that this shall apply to the extent Distributor
is involved in multi-country sales outside of its Territory. Interactive will
use its reasonable best efforts to avoid territorial disputes and establish
methods to resolve disputes once they arise. Distributor agrees to allow
Interactive to act as mediator in any such disputes.
e. JIT. Distributor specifically acknowledges that this
Agreement does not include the right to distribute another product distributed
by Interactive known as Just in Time Enterprise System ("JIT"). Interactive may
establish a JIT sales and support operation in the Territory as it shall
determine. Notwithstanding the foregoing, Interactive will pay a sales
commission to Distributor for introduction and reasonable assistance in
connection with the sale of a JIT system by Interactive. Such commission will be
agreed to on a sale-by-sale basis, but the normal commission for introduction
and reasonable assistance with sales meetings will be five percent (5%) of the
software license fee, payable upon receipt of payment by Interactive from the
end user. To the extent Distributor is involved in any such sales, Interactive
will also consider use of Distributor for implementation and support services,
with fees for such services to be negotiated at that time.
f. Term. The term of this Agreement shall commence on the date
first set forth above and shall continue thereafter for an initial period of
three (3) years, unless earlier terminated as set forth in this Agreement.
Thereafter, so long as Distributor is meeting minimum sales quotas and is not
otherwise in breach of this Agreement, this Agreement shall thereupon continue
until terminated by Distributor giving not less than six (6) months' prior
written notice to Interactive or as otherwise provided in this Agreement.
3. OBLIGATIONS AND RIGHTS OF DISTRIBUTOR.
a. Marketing Activities. Distributor shall:
(1) At all times use its reasonable best efforts to
promote the Software in the Territory and satisfy market demand for the
Software. Distributor shall commit a level of sales, pre-sales and post-sales
resources to its INFOFLO Business Unit as shall be mutually agreed upon between
Interactive and Distributor.
(2) At all times use its reasonable best efforts to
meet the relevant minimum sales quotas for the Software licensed in the
Territory.
(3) Establish a separate resource plan. business plan
and minimum license target for each market within the Territory.
(4) License the Software to end users on terms
substantially identical to Interactive's Business Information System Sales
Agreement, attached hereto as Schedule A, which includes an Equipment Schedule,
Software Schedule, Implementation Support Schedule, Purchase Price Summary,
Services Rate Schedule, Installation Certification. Third-Party Software
Licenses and Third-Party Maintenance (collectively, the "▇▇▇▇▇"). Distributor
acknowledges that Distributor will cause the ▇▇▇▇▇ (as well as all other
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agreements approved by Interactive for use with end users) to be translated into
the local language of the end user and modified to reflect the relationship
between the end user and Distributor as discussed further in Section 4 below.
The ▇▇▇▇▇ and all related agreements shall be signed by an authorized officer of
Distributor. Distributor shall not license the Software to end users except in
accordance with the provisions of the ▇▇▇▇▇. Distributor acknowledges that the
▇▇▇▇▇ and related agreements may be modified and/or replaced by Interactive from
time to time; upon written notice from Interactive, Distributor shall modify
and/or replace the ▇▇▇▇▇ and related agreements which it uses.
(5) Carry out pre-sale activities in the Territory in
relation to the Software including identifying potential end users, holding
demonstrations and holding seminars regarding the Software in the Territory.
(6) Provide or purchase appropriate computer
equipment and/or Software which will permit it to demonstrate the Software to
potential end users at both customer sites and appropriate Distributor
locations.
(7) Provide technical assistance and maintenance
services to licensed end users of the Software in the Territory in accordance
with best computing practice and the highest professional standards and
including, but not limited to:
(a) installing new systems for end
users in the Territory;
(b) training end users in the Territory
in the use of the Software; and
(c) providing maintenance services
directly to end users by
maintaining a telephone help line
manned by staff trained and
competent in the Software during
Distributor's normal business hours
and fielding calls from end users
who purchase maintenance services
under the terms of the ▇▇▇▇▇.
b. License Quotas. The parties have agreed to a joint business
plan for both Germany and Hungary as defined in Distributor's Budget 96.1
document, which is attached hereto as Schedule B. The annual minimum license
quotas for 1996, 1997, 1998 and 1999 will be sixty percent (60%) of the targets
as defined in that Schedule. The annual minimum license quotas will then
continue in subsequent years at sixty percent (60%) of the 1999 license revenue
actually achieved, increasing each year by twenty percent (20%) compounded.
c. Prior Approval of Marketing. Distributor shall, before it
uses Interactive's name, trademarks, copyrights or any other information related
to Interactive or the Software, submit any proposed use to Interactive for its
approval. Interactive's approval shall not be unreasonably withheld or delayed.
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d. Activities Outside The Territory. Distributor shall not
directly or indirectly seek end users of the Software in any country outside the
Territory.
e. Marketing Trends. As part of the reports which Distributor
will provide to Interactive under Section 5.a. Distributor shall keep
Interactive informed of the state of the market for the Software in the
Territory and any trends in relation to sale, marketing or use of the Software
in the Territory.
f. Personnel. Distributor shall at all times during the term
of this Agreement retain or otherwise maintain in the Territory at its disposal
an adequate staff of specialized personnel, qualified to market and support the
Software and to enable Distributor to fulfill its obligations under this
Agreement.
g. Similar Products. During the term of this Agreement
Distributor shall not directly or indirectly, either for itself or on behalf of
another, be engaged in or act as an agent or representative in the development,
publishing, distribution, maintenance or manufacture of computer software
programs that are similar to or intended to compete directly with the Software.
This restriction is not intended to limit Distributor from marketing (i)
manufacturing execution software (MES), such as software for equipment
maintenance, graphical work order scheduling, or data collection, nor (2) the
SmartStream products from ▇▇▇▇ & Bradstreet.
h. Hardware. The parties acknowledge that Distributor will not
be purchasing hardware from Interactive. Distributor acknowledges that the
Software is designed to operate on certain Unix based systems, e.g. versions of
HP/UX and SNI RM/SINIX as certified by Interactive. It will be Distributor's
responsibility to make sure that the hardware it chooses to sell with the
Software or otherwise recommend to end users is compatible with the Software.
i. End User Complaints. Distributor shall promptly inform
Interactive of the nature of any complaint it may receive concerning the
Software in the Territory or any matters coming to its notice which are relevant
to the manufacture, sale, use or development of the Software.
j. Sub-Sellers or Sub-Distributors or Competing Services.
Distributor shall not, without the prior written consent of Interactive, which
consent may be withheld for any reason, appoint sub-sellers or sub-distributors
of the Software. In addition, Distributor shall not license the Software to
providers of computing services to third parties.
k. Compliance with Local Laws. Distributor shall ensure that
the Software and agreements used with end users including, but not limited to
the ▇▇▇▇▇, shall comply with all relevant local laws and regulations and shall
keep Interactive fully and promptly informed of all changes to such laws and
regulations which could affect the Software in the Territory.
l. Export Laws and Regulations. Distributor shall not license,
export, or otherwise dispose of the Software, program products or associated
technical material to any
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person, firm, corporation, or governmental entity which Distributor knows, or
has reason to believe will export, relicense, use or otherwise dispose of the
Software, program products or associated technical material in any country or
territory where the disposition is prohibited or regulated by any law or
regulation of the United States of America or other country, without prior
approval under law; provided this Section shall not apply to any regulated
transaction if the United States of America or other country has expressly
authorized such disposition and the transaction is otherwise lawful.
m. Good Faith. Distributor shall at all times act in good
faith in the best interests of Interactive in the distribution of the Software.
n. Indemnity. Distributor shall indemnify and hold Interactive
harmless from and against all claims, suits, demands, actions and proceedings,
losses, liabilities, damages, costs and expenses including attorneys' fees which
may arise or result from the marketing, distribution or licensing by Distributor
of the Software in the Territory. Without limiting the generality of the
foregoing, this includes claims related to improper or inadequate installation,
maintenance or customization of the Software whether or not performed by
Interactive, as well as any violation or alleged violation of Section 14 (Export
Assurances) of the ▇▇▇▇▇.
4. TRANSLATION AND LOCALIZATION.
a. In General. Interactive and Distributor will provide a
joint team to translate the Software to German and Hungarian and to localize the
accounting and other functionality for the minimum requirements to be saleable
in each market within the Territory. The translated and localized Software will
include: (1) The user interface, (2) On-line help text, (3) Documentation, (4)
Training guides, (5) Marketing materials, and (6) The ▇▇▇▇▇ and related
agreements.
A specification for translation and localization will
be developed and agreed to by Interactive and Distributor prior to commencement
of the work. A subset of the software will be translated to German for
demonstration purposes by the end of third (3rd) quarter 1996. Completion of the
German version is planned for end 1996. Completion of the Hungarian version is
planned for end of second (2nd) quarter 1997.
b. Specific Interactive Responsibilities. Interactive will be
responsible for:
(1) The technical infrastructure within the Software
to support multiple languages and localities.
(2) Ongoing maintenance of the translated and
localized product.
(3) Programming the necessary minimum localization
from the functional specifications provided.
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(4) Providing the design, programming and
documentation resources required to upgrade the localized product following the
release of a new English version of the Software.
c. Specific Distributor Responsibilities. Distributor will be
responsible for:
(1) The initial translation of all text items from
English to German and Hungarian.
(2) Providing the translated deliverables back to
Interactive, so that Interactive can maintain the base product.
(3) Providing functional specifications for the
modifications required for the minimum localization required by the German and
Hungarian markets.
(4) Providing translation resource to upgrade the
localized product when a new English release of the Software becomes available.
5. REPORTS AND INSPECTION RIGHTS.
a. Reports. Distributor shall provide to Interactive on a
monthly basis a sales progress report. The intent of these monthly reports is to
track prospective customers and their special needs, and to forecast
requirements and orders to assist Interactive in minimizing delivery lead times.
Distributor's monthly sales reports shall include, without limitation, the
following information:
(1) Names and addresses of all customers contracted
by Distributor.
(2) Status (e.g., initial inquiry, quote, buy
decision, special requests, sales probability, etc.)
(3) Forecast of all orders for succeeding ninety (90)
days.
(4) Summary of promotional activities during past
month and planned activities for ninety (90) days.
(5) Lost sales reports.
(6) Customer suggestions, if any.
(7) Customer complaints (following Interactive
Customer Complaint Standard Operating Procedures).
b. Maintenance Of Records. Distributor shall keep and maintain
at all times during and for three (3) years after the termination of this
Agreement at its principal business location, complete, accurate and up-to-date
records concerning sales of the Associated Hardware, the licensing of the
Software and the maintenance, support or service
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fees received by Distributor from end users together with all such information
as may be necessary to calculate the payments due to Interactive under this
Agreement.
c. Inspection. Interactive, or a designated representative,
may upon reasonable notice and during Distributor's normal business hours,
inspect the records of Distributor which pertain to the business operations
associated with marketing and supporting the Software at Distributor's principal
business location and take copies of them to determine whether the fees
calculated by Distributor are accurate. Distributor shall immediately pay to
Interactive any amount found to be due from Distributor to Interactive. If
Distributor is found to have underpaid Interactive by two percent (2%) or more
of the amounts which Distributor should have paid to Interactive, then
Distributor shall also pay all fees and costs incurred by Interactive in the
inspection. If Distributor is found to have underpaid Interactive by five
percent (5%) or more of the amounts which Distributor should have paid to
Interactive, the same shall be deemed a material breach of this Agreement.
6. OBLIGATIONS OF INTERACTIVE.
a. Initial Training. Interactive shall provide Distributor
with the initial training set forth on Schedule C attached hereto.
b. Initial Support. It is the parties mutual intention that
Distributor become self-sufficient in sales, pre-sales, support and
implementation services for the Software during the first twelve (12) months
following the date of this Agreement. In support of this goal, during the first
(1st) twelve (12) months following the date of this Agreement, Interactive will
provide, in support of Distributor's INFOFLO business unit, consulting
assistance and advice with: (1) business planning; (2) marketing planning; (3)
recruiting; and (4) set up of operations and procedures.
For qualified sales situations, and subject to the
scheduling and availability of resource, Interactive will provide: (1) sales and
campaign assistance from the European Sales Manager or an appointed account
manager; (2) pre-sales assistance from the European pre-sales consultant team;
and (3) consultancy and advice in support of proposals.
c. Ongoing Service. From and following the first (1st) twelve
(12) months from the date of this Agreement, Interactive will provide, on an
ongoing basis, distributor account assistance from its European Sales Manager or
an appointed account manager. This assistance takes the form of regular business
reviews, newsletters and procedures for: escalating issues, providing input to
product development, obtaining customer references, and obtaining additional
support.
Interactive may, in certain sales situations, and
where agreed to in writing, assist Distributor at no charge. However, the normal
practice will be that, where Distributor does not have the skills or resources
available, Distributor may request pre-sales or post-sales assistance from
Interactive on a chargeable basis. Subject to scheduling and availability, and
against a published fee schedule (Schedule D), Interactive will provide these
services. In addition to sales and pre-sales assistance, the post-sales
activities may include: consultancy, project management, education and training,
technical support, and programming.
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The rates set forth on Schedule D are subject to change on thirty (30) days'
written notice from Interactive to Distributor.
d. Marketing Deliverables. Interactive shall provide
Distributor with the marketing deliverables set forth on Schedule E attached
hereto.
e. Warranties.
(1) Software Warranties. Interactive warrants for a
period of ninety (90) days after delivery and installation certification of the
Software that each copy of the Software will, when properly copied by
Distributor in accordance with Interactive's instructions from time to time,
conform to the description of such Software as set forth in the then current
user manual prepared for such Software by Interactive. In common with practice
within the computer industry, Interactive does not warrant that the Software is
error-free.
(2) Remedies for Breach. Distributor's exclusive
remedy for any breach by Interactive of the warranties set forth in subsection
(1) above shall be the right to obtain from Interactive the repair or
replacement of non-conforming or defective Software.
(3) Intellectual Property Warranty and Indemnity.
Interactive hereby makes the same warranties and indemnities to Distributor as
the Licensor makes to the Licensee as set forth in the ▇▇▇▇▇ and makes no other
representations or warranties. Interactive's liability to Distributor shall
likewise be limited to the same extent as the Licensor's liability is limited to
the Licensee as set forth in the ▇▇▇▇▇.
(4) Disclaimer. Except as expressly provided in this
Agreement, Interactive makes no representations, warranties or promises or
implies any conditions with respect to the subject matter of this Agreement,
whether expressed or implied (including, without limitation, any representation,
condition, warranty or promise relating to suitability, fitness for a particular
use, purpose, condition, conformity to any description or reasonable skill and
care) and liability in tort (other than for negligence causing death or personal
injury) is hereby excluded.
f. Software Maintenance. Interactive will provide, in support
of Distributor's end users, the services described below for the fee set forth
in Schedule D.
(1) Interactive will correct confirmed software
errors in the base Software. Corrections to the base Software will be provided
to Distributor on a periodic basis at Interactive's discretion in the form of
software updates. Distributor is responsible for maintaining its end users at
the current update level, and at the latest Interactive approved levels of
operating system and operating environment. Updates to the base Software may not
include or accommodate customized software or modifications to Distributor's or
its end users' Software.
(2) Interactive will notify Distributor of new
Software upgrades, including a list of enhancements included since the prior
upgrade. Under the maintenance fee, Distributor's end users are entitled to each
new Software upgrade at no additional license
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fee, but only for the number of users licensed and the software modules listed
on the end user's license schedule. Upgrades to the base Software may not
include or accommodate customized software or modifications to Distributor's or
its customers' Software.
(3) Interactive will provide Distributor with
telephone hotline support, in support of the hotline support Distributor will
provide to its end users. This service will be provided during Interactive's
normal business hours in London, England. It will provide support for the
purpose of identifying and diagnosing system problems associated with the
Software and to answer general product questions in connection with use of the
Software.
7. PRICING, FEES AND PAYMENTS.
a. Anticipated Price. The current anticipated price list for
the Software in the Territory at which Interactive and Distributor believe the
Software can be sold is set out in Schedule F. However, Distributor is free to
set the license, service and maintenance fees it charges end users for the
Software and any other services provided by Distributor under this Agreement.
b. Payments from Distributor. In addition to payments provided
for elsewhere in this Agreement, Distributor shall cause the following amounts
to be paid to Interactive:
(1) Initial Distributor Fee. Distributor shall pay to
Interactive * for Site Licenses for Munich, Nurnberg and Budapest;
Demonstration Licenses as required; End User Trial Licenses as required;
marketing deliverables detailed in Schedule E; initial support as detailed in
Section 6.b.; and initial training package as detailed in Schedule C. Fifty
percent (50%) of this amount will be paid within fifteen (15) days following
mutual execution of this Agreement, with the fifty percent (50%) balance payable
within fifteen (15) days following completion of the initial training.
(2) Software License Fee. Distributor shall pay to
Interactive a software license fee equal to * of the license fee being paid by
the end user, but in no event shall this amount be less than * of the
anticipated end user license fee set forth on Schedule F. This amount shall be
paid thirty percent (30%) within fifteen (15) days following execution of the
▇▇▇▇▇ with the end user and the seventy percent (70%) balance within fifteen
(15) days following Software certification as defined in the ▇▇▇▇▇.
(3) Maintenance Fee. On an annual basis, Distributor
shall pay to Interactive a Software Maintenance Fee equal to * of the original
license fee as discussed in subsection (2) above. This fee will be paid within
fifteen (15) days following the amounts being due from the end user to
Distributor as provided in Interactive's Standard Maintenance Agreement, which
is part of the ▇▇▇▇▇.
(4) Fee for Professional Services. To the extent
Distributor or any end user engages Interactive's services, Interactive shall be
paid for those services at the rates
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* Confidential Treatment Requested
12
set forth on Schedule D, which rates are subject to change on not less than
thirty (30) days' prior written notice from Interactive to Distributor.
c. Responsibility for Taxes. Unless otherwise agreed in
writing, Distributor shall bear the cost and shall be responsible for the timely
payment of all relevant taxes, duties and assessments imposed upon Distributor
in connection with the license, supply and/or maintenance of the Software and
Associated hardware or the payments due to Interactive under this Agreement,
including all sales tax, withholding tax and other taxes.
d. Late Payment. All amounts payable from Distributor to
Interactive under this Agreement are due irrespective of payment arrangements
agreed to between Distributor and the end user and irrespective of whether the
end user has made payment. Late payment of sums due to Interactive shall bear
interest at the rate of five percent (5%) above the base rate from time to time
of Midland Bank plc from the date of due payment to the date of actual payment.
e. Form of Payment. All payments from Distributor to
Interactive hereunder will be in Pounds Sterling by means of a company check,
bank check or bank transfer to the bank account nominated by Interactive.
Amounts to be paid by Distributor shall be deemed converted into Pounds Sterling
at the exchange rates quoted on the last business day of such calendar month by
the Bank of England. The form of currency provided herein may be changed by
Interactive on not less than thirty (30) days' prior written notice and shall be
effective as to all payments made by Distributor after the date specified in the
notice, not to be less than thirty (30) days.
8. CONFIDENTIALITY.
a. Confidential Information. Distributor acknowledges that it
may learn from Interactive some of Interactive's confidential information about
the Software or its business. Accordingly, Distributor agrees that the design,
development and operation of the Software, in any form, are proprietary and
confidential information and trade secrets of Interactive (collectively
"Confidential Information"). Distributor shall not, directly or indirectly,
disclose, copy, release and/or otherwise transfer Interactive's Confidential
Information to any third party or entity at any time. Distributor can disclose
the Confidential Information only to those of its employees who have a specific
need to know to perform Distributor's obligations under this Agreement.
Distributor shall not reverse engineer, compile, disassemble, or modify any of
the Software at any time. Distributor further agrees not to directly or
indirectly develop, apply, incorporate or use Interactive's Confidential
Information in any research, commercial or other enterprises not part of this
Agreement and/or develop or otherwise produce from the Confidential Information
a corresponding software or product that is in any way similar to the Software
or that could in any way compete with the Software in the marketplace. The terms
of this Agreement are also confidential and shall not be disclosed by
Distributor to any third party at any time.
b. Security Steps. Without limiting Distributor's obligations
set forth in subsection a. above, the Distributor shall implement the following
security steps in order to protect the confidentiality and security of
Interactive's Confidential Information:
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(1) implement internal procedures to limit, control
and supervise the use of the Confidential Information to those of its employees,
agents and subcontractors who need access to that information for the purposes
of this Agreement;
(2) notify Interactive in writing of any suspected or
known breach of the obligations under this Section 8 as soon as it becomes aware
of such breach;
(3) utilize those security procedures it uses for its
own confidential information which it protects against unauthorized disclosure,
appropriation or use.
9. PROPRIETARY RIGHTS IN SOFTWARE.
a. Exclusive Ownership. Interactive shall retain sole and
exclusive ownership of all right, title and interest in and to the Software and
all related documentation. The foregoing retention of exclusive rights shall
include all intellectual property rights in the Software and shall apply to all
translations, modifications or enhancements made to the Software (including
modified or customized Software), and all related documentation (including all
versions of the user manual). Distributor agrees that it will not copy or use
the Software except as authorized in this Agreement or as authorized in writing
by Interactive.
b. Property Rights. Interactive shall solely own and have
exclusive worldwide right, title and interest in all United States and foreign
patents, trademarks, copyrights, trade secrets and all other intellectual
property rights regarding the Software and all derivative works thereof, and
Distributor shall vigorously protect and defend the same. Title to all Software
shall always remain vested in Interactive.
c. Acknowledgement of Proprietary Rights. Distributor
acknowledges and agrees that the Software constitutes a trade secret and
proprietary information of Interactive. Interactive shall solely own and have
exclusive worldwide right, title and interest in all United States and foreign
patents, trademarks, copyrights, trade secrets and all other intellectual
property rights regarding the Software and any algorithms, implementations and
information received or developed under this Agreement or otherwise developed by
Distributor which relates to the Software, including modifications and
enhancements and improvements. All work created by Distributor under this
Agreement. shall be considered a "work made for hire" under the United States
federal copyright law and owned by Interactive. Distributor does not have and
shall not be deemed to have any right, title or interest in the Software.
Distributor shall execute any and all documents,
applications and assignments reasonably required to secure to Interactive the
full benefit of its property rights arising out of this Agreement, including by
copyright registration or patent protection. During or after the term of this
Agreement Distributor shall if requested by Interactive assist in defending or
enforcing any copyright, patent or other proprietary right of which it is the
author.
d. Restrictions on Use. Except as expressly provided or
contemplated herein, Distributor shall not, at any time, disclose or disseminate
the trade secrets embodied in the Software or any related documentation to any
other person, firm, organization or
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employee. Under no circumstances may Distributor unlawfully decompile or reverse
assemble any object code version of the Software or authorize (or purport to
authorize) any third party to unlawfully decompile or reverse assemble any
object code version of the Software.
e. LEGENDING. Distributor shall reproduce and include in all
copies of the Software prepared by Distributor hereunder the copyright notices
and proprietary legend(s) of Interactive as supplied by Interactive and shall
not delete, obscure or alter them.
10. TRADEMARKS. Distributor shall use the following trademark currently
used by Interactive in connection with Distributor's sublicense of the Products:
"INFOFLO," "Interactive" and Interactive's logo. Distributor shall not use
private label or use any other trade names or trademarks regarding the sale or
promotion of the Software. Distributor also agrees that it will not remove,
modify or place anything over the serial, model or revision level numbers,
"manufactured by" labels, trademarks, patent notices, copyright notices and/or
any other identification markings on the Software or the containers for the
Software. Interactive, in its sole discretion, may at any time modify or
discontinue the use of any trademark and/or use additional or substitute names
or marks. Interactive shall notify Distributor of any such change, and
Distributor shall immediately comply with the change in names or marks.
11. TERMINATION.
a. Distributor may terminate this Agreement by serving written
notice in accordance with Section 2.f above.
b. If Distributor shall fail to meet the relevant minimum
license quotas for any year of this Agreement as discussed in Section 3.b,
Interactive may, in addition to any other rights granted to it in this
Agreement, terminate this Agreement by serving not less than thirty (30) days'
written notice on Distributor.
c. Interactive shall have the right to terminate this
Agreement immediately if:
(1) Distributor shall enter into liquidation,
receivership or official management in any jurisdiction (other than a members'
voluntary liquidation for the purpose of a bona fide solvent reconstruction) or
into any arrangement for the benefit of its creditors; or
(2) Distributor shall commit a material breach of the
terms of this Agreement and the same shall not have been remedied within thirty
(30) days after written notice shall have been given by Interactive. If any
provision of this Agreement calls for mutual agreement between the parties, and
if mutual agreement is not reached, and if no other remedy for failure to reach
mutual agreement is expressly provided for, the same shall be deemed a material
breach of this Agreement; or
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15
(3) Distributor merges or consolidates with or sells
substantially all of its assets to another corporation, or dissolves, liquidates
or otherwise terminates its existence, or ceases or threatens to cease to carry
on business; or
(4) if, without the written agreement of Interactive,
there is a change in the control of Distributor which Interactive reasonably
considers to be prejudicial to its interests.
d. If both parties agree in writing that the marketing and
sale of Software is not commercially viable in the Territory, then either party
shall have the option to terminate this Agreement by giving at least sixty (60)
days' prior notice in writing to the other party.
12. CONSEQUENCE OF TERMINATION. If this Agreement shall terminate:
a. All rights granted to Distributor under this Agreement
shall terminate and its appointment as a distributor of Interactive shall cease
except where termination is due to the insolvency of Distributor or material
breach by Distributor, to the extent that Distributor has any existing orders
for Software or services outstanding at the date of termination, Distributor
shall be entitled to fulfill them. Upon termination of this Agreement,
Distributor shall immediately cease all marketing activities in respect of the
Software and the use of the Marks.
b. Distributor shall immediately deliver to Interactive all
copies of the Software, the Confidential Information and the user manuals
together with all copies of any and all information, documents and materials
related to them or the marketing of the Software.
c. Distributor shall pay Interactive, within thirty (30) days
after such termination, all amounts that are owed to Interactive under this
Agreement.
d. Distributor shall prepare and deliver to Interactive within
thirty (30) days following termination of this Agreement, a written report
containing the information described in section 5.a above and a detailed summary
of:
(1) the status of negotiations with potential end
users of the Software in the Territory;
(2) the terms and conditions of any agreements,
arrangements or understandings, whether written or oral, Distributor may have
entered into with respect to the Software or the marketing or maintenance of
them in the Territory;
(3) any services which Distributor may have an
obligation to render under any ▇▇▇▇▇; and
(4) copies of all ▇▇▇▇▇ granted by it to end users
then in force.
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e. Distributor shall have no further rights in the Software or
the copyright, Marks, patents or Confidential Information of Interactive. Upon
the request of Interactive, Distributor shall, at its own expense, execute and
deliver to Interactive such instruments and take all other action as Interactive
deems necessary to ensure the termination of any such rights which Distributor
might otherwise have (including where the Marks are used in signs, advertising
or in any other manner Distributor shall, upon termination of this Agreement,
immediately discontinue all such use and display thereof) and to vest in
Interactive every interest in the said Software, copyright, Marks, patents and
Confidential Information.
f. Interactive shall continue to provide to end users warranty
services and/or maintenance services required pursuant to the BISSAs then in
effect with those end users. The termination of this Agreement shall not affect
the continuation of the BISSAs. The form of the ▇▇▇▇▇ which Distributor utilizes
with end users shall contain the following clause:
Upon receipt of written notice from Interactive,
Licensee shall make all future payments to
Interactive and Interactive shall thereupon assume
and perform all of the obligations of Licensor under
this Agreement.
g. Without prejudice to any accrued rights of the parties to
the date of termination, no compensation of any kind shall be payable by
Interactive to Distributor.
h. Distributor shall not thereafter hold itself out as
connected with Interactive in any way.
13. FORCE MAJEURE. Except as it concerns the payment of money from
Distributor to Interactive, neither party shall be liable for failure or delay
in performing any of its obligations under this Agreement if such failure or
delay is occasioned by compliance with any government regulation, request or
order or any circumstances beyond the reasonable control of the defaulting
party. This includes Acts of God, insurrection, war, fire, flood, accident,
labor strike or inability to obtain materials, supplies, power or equipment
necessary to enable such party to perform its obligations under this Agreement.
Each party shall:
a. promptly notify the other in writing of any such event of
Force Majeure, the expected duration of it and its anticipated effect on its
ability to perform its obligations under this Agreement; and
b. make reasonable efforts to promptly overcome the delay
occasioned by any such event.
14. ENFORCEMENT. Distributor and Interactive agree that Interactive
will be irreparably harmed and money damages would be inadequate compensation to
Interactive in the event Distributor and/or any of its end users breach any
provision of this Agreement. Accordingly, all the provisions of this Agreement
shall be specifically enforceable by injunctive and other relief against
Distributor in the event Distributor breaches any provision
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17
of this Agreement. For any breach of the ▇▇▇▇▇, Interactive shall be entitled to
pursue injunctive and other relief against Distributor and/or the end user.
Sections 3.m (Indemnity), 5.b (Maintenance of Records), 5.c (Inspection of
Records), 8 (Confidentiality), 9 (Proprietary Rights In Software), 12
(Consequence of Termination), 20 (Arbitration), 21 (Attorneys' Fees) and 25
(Governing Law) shall survive any termination or expiration of this Agreement.
15. INFOFLO LICENSE FOR INTERNAL USE. Distributor shall obtain a
license for a sixteen (16) user software system for its internal use installed
on two (2) computer systems subject to the provisions, conditions and fees set
forth on Schedule G concurrently with the execution of this Agreement.
Distributor shall execute and deliver to Interactive Interactive's standard
▇▇▇▇▇ concurrently with the execution of this Agreement.
16. RELATIONSHIP OF PARTIES. The parties constitute separate and
independent businesses. The parties are not partners or co-venturers and have no
right to act on behalf of each other or otherwise bind each other.
17. SCHEDULES. All Schedules referenced herein are hereby incorporated
herein by reference.
18. NOTICES. Any notice from one party to another shall be delivered
either personally, via facsimile or by recognized international courier (i.e.,
DHL, Federal Express, etc.), postage fully prepaid, addressed as follows:
INTERACTIVE: Interactive Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Fax No.(▇▇▇)▇▇▇-▇▇▇▇
DISTRIBUTOR: evosoft Softwarevertrieb GmbH
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax No. ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Any notice being delivered within the continental United
States shall be deemed delivered upon (a) personal service, or (b) transmission
via facsimile (with the original thereof to be immediately sent via mail,
postage prepaid), or (c) forty-eight (48) hours after the time of deposit with
the recognized international courier, as the case may be. In the event any party
changes its address, such change of address shall be communicated to the other
party in the manner set forth in this numbered paragraph.
19. AMENDMENT. This Agreement shall be amended only by a writing signed
by the parties. If such a written amendment is entered into, such written
amendment shall modify only the provisions of this Agreement specifically
modified and shall be deemed to incorporate by reference, unchanged, all
remaining provisions of this Agreement.
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18
20. ARBITRATION.
a. Except as it relates to claims concerning Interactive's
intellectual property, as discussed further in Section 25 of this Agreement,
which claims shall be brought in the United States District Court located in San
Diego, California, USA, and jurisdiction for which the parties hereby consent,
all other claims or disputes between the parties arising out of or relating to
this Agreement, which claims or disputes cannot be mutually resolved between the
parties shall be decided by arbitration in London, England, in accordance with
the Rules of Conciliation and Arbitration of the International Chamber of
Commerce London Court of Arbitration. The London Court of Arbitration shall
administer the arbitration and who shall be appointing authority to appoint
three (3) arbitrators. In the event of any conflict between the Rules and this
Article, the provisions of this Article shall govern. The parties hereby agree
to exclude any right of application or appeal to the English courts in
connection with any question of law arising in the course of reference out of
the award. The language used throughout the arbitration shall be English. The
rights and obligations of the parties under this Agreement and in the
arbitration shall be governed by the local, domestic law of England.
b. The parties agree that after either has filed a Notice of
Demand for arbitration of any dispute subject to arbitration under this
Agreement, they shall, upon request, make discovery and disclosure of all
materials relevant to the subject of the dispute. The arbitrators shall make the
final determination as to any discovery disputes between the parties.
Examination of witnesses by the parties and by the arbitrators shall be
permitted. A written transcript of the hearing shall be made and furnished to
the parties, if so requested by either party. The cost of this transcript shall
be borne by the party(ies) requesting the transcript.
c. The arbitrators shall state the reasons upon which the
award is based. The award of the arbitrators shall be final and binding upon the
parties. Judgment upon the award may be entered in any court having
jurisdiction. An application may be made to any such court for a judicial
acceptance of the award and an order for enforcement. The parties acknowledge
that this Agreement and any award rendered pursuant to it shall be governed by
the 1958 United Nations Convention on the Recognition and Enforcement of Foreign
Arbitral Awards.
21. ATTORNEYS' FEES. In the event any party shall be required to
commence any action or proceeding against the other party by reason of any
breach or claimed breach of any provision of this Agreement, to commence any
action or proceeding in any way connected with this Agreement, or to seek a
judicial declaration of rights under this Agreement, the person prevailing in
such action or proceeding shall be entitled to recover from the other person, or
to be reimbursed, the prevailing person's actual attorneys' fees and costs
including, but not limited to, expert witness fees, witness fees, and any and
all other fees and costs, whether or not the proceeding or action proceeds to
judgment.
22. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective heirs, executors,
administrators, legal administrators, legal representatives, successors and
assigns.
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23. CONSTRUCTION. Whenever used in this Agreement as the context
requires, the singular number shall include the plural, the plural number shall
include the singular, the masculine gender shall include the feminine and
neuter, the feminine gender shall include the masculine and neuter, and the
neuter gender shall include the masculine and feminine.
24. HEADINGS AND CAPTIONS. The headings and captions at the beginning
of various paragraphs and subparagraphs of this Agreement shall not be construed
to be a substantive part of this Agreement and shall not in any way define,
limit, expand or affect any provision of this Agreement.
25. GOVERNING LAW. Except as it concerns intellectual property rights,
this Agreement shall be governed under the laws of England. With respect to
intellectual property rights, including, but not limited to, patents,
copyrights, trademarks, confidential information and the like, such rights will
be governed by the laws applicable in the State of California, including
applicable federal law.
26. FURTHER ACTS. Each party shall perform any further acts and sign
and deliver any further documents that are reasonably necessary to carry out the
provisions of this Agreement.
27. ENTIRE AGREEMENT. This Agreement contains the entire understanding
between the parties and supersedes any prior or contemporaneous written or oral
agreements between the parties. There are no representations, warranties,
agreements, arrangements, or understandings, oral or written, between the
parties relating to the subject matter of this Agreement except as set forth in
this Agreement.
28. COUNTERPARTS. This Agreement may be signed in one (1) or more
counterparts, each of which shall constitute an original but all of which
together shall be one (1) and the same document.
INTERACTIVE GROUP, INC., evosoft SOFTWAREVERTRIEB GmbH,
a Delaware corporation a German corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/
---------------------------------- --------------------------
Its: Chairman and CEO Its:
----------------------------- ---------------------
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LIST OF SCHEDULES
Schedule A Business Information Systems Sales Agreement
Schedule B Distributor's Budget 96.1 for License Quotas
Schedule C Initial Training Package
Schedule D Interactive Rate Schedule
Schedule E Marketing Deliverables
Schedule F Anticipated Prices
Schedule G Infoflo License for Internal Use
21
EXHIBIT A
[INTERACTIVE LETTERHEAD]
Business Information System
SALES AGREEMENT
Customer: _____________________________
Effective Date: _______________________
Agreement Number: _____________________
22
Business Information System Sales Agreement
Table of Contents Page
1. Executive Summary ................................ 1
2. Definitions ...................................... 1
3. Purchase and Sales Agreement ..................... 1
4. Prices and Payment ............................... 1
5. Delivery, Title and Risk of Loss ................. 2
6. Site Preparation ................................. 2
7. Software Licenses ................................ 2
8. Security Interest ................................ 3
9. Installation Certification ....................... 3
10. Implementation Support ........................... 3
11. Limited Warranties ............................... 4
12. Software Maintenance ............................. 4
13. Remedies ......................................... 5
14. Export Assurances ................................ 6
15. General Terms .................................... 6
16. Acceptance ....................................... 6
Schedule A
A-1 Equipment Schedule
A-2 Software Schedule
A-3 Implementation Support Schedule
A-4 Purchase Price Summary
A-5 Services Rate Schedule
A-6 Installation Certification
A-7 Third-Party Software Licenses
A-8 Third-Party Maintenance
23
Business Information System Sales Agreement 1
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1. EXECUTIVE SUMMARY
This Agreement describes and specifies the terms and conditions for Customer's
purchase of a business information system (the "System") from Interactive. The
System is fully integrated and comprised of the computer equipment, operating
software, application software, third-party software, documentation,
implementation support, and maintenance services as specifically listed in
Schedule A.
The basic components of the System have been field-proven to be capable,
reliable and compatible. Like every sophisticated computer system, however, the
successful implementation of the system will depend on the cooperative effort
of the Customer and Interactive in an interrelated process of system
certification, implementation and maintenance.
2. DEFINITIONS
2.1 "Base Software" means Interactive's standard version of the Interactive
Software unmodified by or for a customer.
2.2 "Confirmed Software Errors" means actual coding errors, failure of
software to substantially perform program functions specified in the applicable
User Manuals or Specifications, or errors in the Documentation, any of which
are determined by Interactive to exist.
2.3 "Customized Software" means that specific application software code
modified or developed by Interactive from the Base Software for a customer as
defined by the Specifications therefore.
2.4 "Delivery" means physical delivery of substantially all equipment and/or
software media to Customer's premises. Delivery does not imply Installation
Certification or implementation of the system sold under this Agreement.
Delivery will be deemed to have occurred despite the absence of incidental
components which may not have been delivered with the Primary Equipment.
2.5 "Documentation" means manuals and specifications, instructions or other
writings related to equipment, software and services hereunder. Documentation
does not include program or source code listings.
2.6 "Effective Date" means the date upon which this Agreement becomes a
binding contract as established when signed by the Customer and an authorized
officer of Interactive.
2.7 "Installation Certification" means the process of running the Primary
Equipment and the Interactive Software under a procedure to demonstrate
delivery and basic interoperability of system components as specifically
defined in Schedule A-6.
2.8 "Interactive Software" means the application software and related
documentation owned by or licensed by Interactive that is specified in Schedule
A-2. "Application" means the business/commercial requirement or process to
which the software is applied, e.g., inventory control, general ledger.
2.9 "Kernel Software" means the software owned or licensed by Interactive
which controls, protects, and supports the Interactive Software specified in
Schedule A-2 (as applicable).
2.10 "Object Code" means any instruction or set of instructions in
machine-readable form.
2.11 "Operating Environment" means system and support software which controls
and manages the database, application development, and user interface functions
of the System. The two principal components of the Operating Environment
include the following:
2.11.1 "Database Software" means software that controls a data structure
containing interrelated information stored so as to optimize accessibility,
control redundancy, and offer multiple views of the data to multiple
application programs.
2.11.2 "User Interface/Developer (4GL)" means support software which (1)
manages the user interface functions of the application software, e.g. menus,
windows, and (2) provides the tools for developing and maintaining application
software, e.g. 4th generation language (4GL), screen painter.
2.12 "Operating System" means system software controlling the overall operation
of computer system resources, for example, input and output distribution,
interrupt processing, memory allocation, file handling, and communications.
2.13 "Primary Equipment" means the computer system equipment comprised of
processors, memory, data storage, and communications subsystems as described in
Schedule A-1, but excluding peripheral equipment, such as video display
terminals, multiplexors and printers.
2.14 "Software" means all of the computer software supplied by Interactive
hereunder.
2.15 "Software Upgrade" means a new version of Base Software incorporating new
features and enhancements.
2.16 "Software Update" means a revision to a Software Upgrade of the Base
Software to provide corrections.
2.17 "Source Code" means the original mnemonic or high-level statement versions
of a program language.
2.18 "Specifications" means the detailed application software design document
which defines the Customized Software, including a statement of the required
hours to program, test, and implement.
2.19 "System" means the primary Equipment, Operating System, Operating
Environment, Interactive Software, and Third-Party Software supplied by
Interactive hereunder.
2.20 "Third-Party Software" means software packages other than Interactive
Software that is marketed and/or supported by Interactive but owned by persons
or entities other than Interactive.
2.21 "User Manual" means that subset of Documentation which contains user
instructions for operation of a program, set of programs, or system hereunder.
2.22 "Users" means the maximum number of independent processes and/or devices
attached directly or networked to the Primary Equipment, as configured in
Schedule A-1, which are permitted by this Agreement to be in concurrent
operation on the Software. Users include but are not limited to data input and
output devices, background/batch processes, and communications equipment.
Notwithstanding this definition, Users exclude data printers which are attached
to the Primary Equipment for output purposes only.
3. PURCHASE AND SALE AGREEMENT
3.1 Interactive agrees to sell and Customer agrees to purchase the equipment,
software licenses and supporting services as specifically described in Schedule
A in accordance with the terms and conditions of this Agreement.
4. PRICES AND PAYMENT
4.1 The prices for each major system component purchased hereunder are listed
in Schedule A-4. Customer agrees to pay to Interactive a deposit equal to
thirty percent (30%) of the Total System Purchase Price (Schedule A-4) upon
signing of this Agreement. This deposit will be fully refundable until this
Agreement becomes effective by Interactive signing it (the "Effective Date").
4.1.1. Interactive reserves the right not to deliver equipment and/or software,
or any part thereof, until credit approval and/or lease approval (if
applicable) has occurred.
24
2 Business Information System Sales Agreement
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4.2 The balance of the Total System Purchase Price shall be due and payable
upon successful completion of the Installation Certification, less the unpaid
balance of the Implementation Support charges (Schedule A-3), for which payment
shall be made on a monthly basis as the work is incurred, and less payment for
any incidental items not yet delivered, for which payment shall be made upon
their Delivery and installation. Should Customer elect to obtain third party
financing for purchase of the system, it shall notify Interactive as soon as
possible, but no later than ten (10) working days after contract signing, and
shall work diligently to secure said financing so as to not delay Delivery.
Interactive shall be under no obligation to deliver Equipment and/or Software
until it receives a valid purchase order or firm letter of commitment from such
financing company. Should Customer obtain third party financing for the Total
System Purchase Price, Interactive shall not be obligated to refund the deposit
until the lease or loan has been funded and Interactive has been paid in full.
For purposes of this Agreement, the term "financing" includes but is not
limited to leasing.
4.2.1 If Customer acquires the system via a lease, this Agreement shall be
incorporated by reference in the lease agreement and the terms and conditions
herein shall supersede any purchase order, assignment agreement, or other
contract of the lessor. Notwithstanding a lease, Customer shall continue to be
fully obligated under this Agreement.
4.3 The Interactive Software maintenance fee listed in Schedule A-2, for
services provided under section 12 herein, shall be invoiced monthly in
advance. Interactive's invoices for monthly maintenance, support services,
travel, and other services, expenses or charges shall be due and payable within
10 days after receipt of invoice.
4.4 Customer shall be solely responsible for payment or reimbursement to
interactive of all sales, use, or similar taxes imposed upon this transaction
by any level of government, whether due at the time of sale or asserted later
as a result of audit of the financial records of either Customer or
Interactive. Customer shall also pay all personal property taxes levied by
government agencies based upon Customer's use or possession of the Equipment or
Software acquired or licensed in this transaction.
4.5 All amounts due and payable to Interactive hereunder shall, if not paid
when due, bear interest at one and one half percent per month, from the due
date until paid. Interactive reserves the right to discontinue the services and
support provided herein should Customer fail to pay any amount specified in the
Agreement when due.
5. DELIVERY, TITLE AND RISK OF LOSS
5.1 Interactive will make best efforts to effect Delivery of the equipment
and/or software within ninety days of the Effective Date of this Agreement,
subject to the provisions of paragraph 15.1, below.
5.2 Title to the equipment, if purchased hereunder, shall not pass to Customer
until the Total Equipment Purchase Price hereunder has been fully paid.
Interactive retains a security interest in the equipment, if purchased
hereunder, as more fully provided in paragraph 8, below. Title to software
shall remain in Interactive or other owner(s) of software under paragraph 7 of
this Agreement, "Software Licenses."
5.3 Interactive shall bear the risk of loss of, or damage to equipment
purchased hereunder until Delivery to Customer. Thereafter, all risk of loss to
or damage of the equipment shall be borne by Customer. Customer agrees to
maintain insurance at least equal to the purchase price of the equipment until
the purchase price is completely paid to Interactive. Such insurance shall name
Interactive as an additional insured and as loss payee for damage or
destruction of the equipment.
5.4 In addition to Total System Purchase Price, Customer agrees to pay for all
shipping charges associated with Delivery of equipment purchased hereunder.
6. SITE PREPARATION
6.1 Customer agrees to provide, at its own expense, those facilities and
equipment deemed necessary by the manufacturer or Interactive to at least meet
the manufacturer's minimum requirements for proper electrical power quality,
equipment cooling, and other computer facility resources. Such facilities and
equipment shall be in place and operational prior to Delivery of the equipment.
6.2 Interactive shall assist customer in meeting its obligations under
paragraph 6.1 by providing the necessary guidelines and specifications for site
preparation. A site survey will be conducted by the equipment manufacturer or
Interactive if required, for the fee listed in Schedule A-3. Interactive will
arrange for additional direct support services from the manufacturer, if
requested by Customer at Customer's own expense.
A site survey, if required, includes discussion of preparation and installation
requirements relevant to Customer's system. This includes physical, electrical
and environmental requirements applicable to Customer's system. Before schedule
delivery, a verification will be performed on site or by telephone to ensure
Customer's site meets the stated requirement. The fulfillment of any
requirements or recommendations resulting from this survey shall be the
responsibility of Customer at Customer's own expense.
7. SOFTWARE LICENSES
7.1 Operating System and Operating Environment Software
7.1.1 Title to the Operating System and Operating Environment Software listed
in Schedule A-2 remains in the owner of such software and its use by Customer
is granted under the owner's license agreement or an end-user sub-license
issued by Interactive and included in Schedule A-7.
7.2 Interactive Software
7.2.1 Title to the Interactive Software listed in Schedule A-2 remains in
Interactive. In consideration of the software license fees paid under this
Agreement, Customer is granted a limited, single-use, nonexclusive,
nontransferable license to use the Interactive Software for Customer's own
internal business operations as required to operate a single, integrated
database, and to make backup and archival copies as reasonably deemed necessary
by Customer, provided that Interactive's copyright notice and other proprietary
markings are reproduced on such copies. Interactive retains all rights to the
Interactive Software not expressly granted in this Agreement. The Interactive
Software provided under this license may be used by no more than the total
number of Users specified in Schedule A-2 and only on the central processing
system designated in Schedule A-1 or on a temporary backup system in the event
Customer's Primary Equipment fails. Software may not be used to operate a
service bureau or time-sharing service.
7.2.2 Customer shall not copy, translate, rent, sell, sublicense, create
derivative works, decompile, disassemble, reverse engineer, or transfer the
Interactive Software or Documentation, or permit others to do said acts, except
as provided in this Agreement. Any such unauthorized use shall result in
immediate and automatic termination of this license. Any modifications made to
the Interactive Software by the Customer, its employees, agents or
contractors, will not in any way diminish the copyright, trade secret, or
other proprietary rights of Interactive in the Interactive Software.
7.2.3 The Interactive Software granted in this Agreement includes Source Code,
except for the Kernel Software, which is licensed in Object Code only. The
scope of this Source Code license is limited to maintenance support of the
Interactive Software. Should Customer desire to contract with an outside agent
or contractor, other than Interactive, to perform maintenance support of the
Interactive Software, then customer must obtain prior written consent from
Interactive. Such consent will not be unreasonably withheld, but will require
that said agent or contractor execute a non-disclosure agreement of a form
acceptable to Interactive.
25
Business Information System Sales Agreement 3
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7.2.4 The terms of this license shall be for as long as Customer complies
with the terms and conditions of this Agreement. If Customer violates these
terms and conditions and fails to remedy the violations within thirty (30) days
after written notice by Interactive, the Interactive Software license may be
terminated and the Software rendered unusable. Upon termination, Customer shall
return all copies of the Interactive Software and Documentation to Interactive.
7.2.5 Customer understands and agrees that the Interactive Software and all
Documentation related thereto constitute the valuable properties and trade
secrets of Interactive, owner of the copyright to said software, embodying
substantial creative efforts which are secret, confidential and not generally
known by the public, and which secure to Interactive a competitive advantage.
7.2.6 Customer agrees during the terms of this license and thereafter to hold
the Interactive Software, including any copies of it, and the Documentation in
strict confidence and to not permit any person or entity to obtain access
except as required for Customer's own internal use. Any person permitted access
to Source Code licensed under this Agreement shall be required to agree in
writing to comply with the terms of this paragraph 7.2. Customer shall inform
Interactive promptly in writing of any actual or suspected unauthorized use,
copying, or disclosure of the Interactive Software or Documentation related
to it.
7.2.7 On Interactive's written request, not more frequently than annually,
Customer shall furnish Interactive with a signed certification (a) verifying
that the Software is being used pursuant to the terms of this Agreement,
including any user limitations; and (b) listing the locations, types and serial
numbers of the Primary Equipment on which the Software is run.
Interactive may, at its own expense, audit the number of copies of the Software
in use by Customer, the Primary Equipment on which the Software is installed,
and the number of users using the Software. Any such audit shall be conducted
during regular business hours at Customer's facilities and shall not
unreasonably interfere with Customer's business activities. If an audit reveals
that Customer has underpaid fees to Interactive, Customer shall be invoiced for
such underpaid fees based on the then-current license fees at the time the
audit is completed; if the underpaid fees exceed five percent (5%) of the
license fees paid, the Customer shall also pay Interactive's reasonable costs
of conducting the audit. Audits shall be conducted no more than once annually.
7.2.8 The obligations under this paragraph 7.2 shall survive the termination
or rescission of this Agreement.
7.3 Third-Party Software
7.3.1 Title to Third-Party Software listed in Schedule A-2 (if any) remains
in the owner of such software and its use by Customer is granted under the
owner's license agreement or an end-user sub-license issued by Interactive and
included in Schedule A-7, which Customer agrees as applicable, to sign
coincident with the execution of this Agreement. Customer understands and
agrees that unless Interactive is a party to these third-party licenses, all
warranties and remedies for such software are provided directly or by its
owner/licensor.
7.4 Confidentiality of Customer Information
7.4.1 Interactive agrees to maintain Customer's confidential business
information to which Interactive gains access in confidence and to not disclose
such information except as required to perform hereunder. Notwithstanding the
above, Interactive may use knowledge and information learned as a result of its
work hereunder to make modifications and enhancements to the Interactive
Software without restriction. Customer shall acquire no rights to the
Interactive Software as a result of such use, whether as author, joint author,
or otherwise.
8. SECURITY INTEREST
8.1 Interactive retains and Customer hereby grants to Interactive a
purchase money security interest in the equipment purchased hereunder, if any,
and in all accessions to, replacement of, and proceeds from said equipment, as
security for the payment of the Total Equipment Purchase Price. As used in this
paragraph, "proceeds" includes whatever is receivable or received when proceeds
or collateral are sold, collected, exchanged or otherwise disposed of, whether
such disposition is voluntary or involuntary, and includes, without limitation,
all rights to payment, including return premiums, with respect to any insurance
related thereto. This Agreement, or a copy of it, may be filed with appropriate
authorities at any time after signature by the Customer as a financing
statement and/or a chattel mortgage in order to perfect Interactive's security
interest. Such filing does not constitute acceptance of this Agreement by
Interactive. Customer agrees to sign financing statements and other documents
as Interactive reasonably requires to perfect its security interest. Such
security interest will be released upon full payment of the Total System
Purchase Price, less the unpaid balance of the Implementation Support charges,
to Interactive.
8.2 Until full payment for the equipment is made, Customer shall maintain
the equipment in good order and repair at Customer's expense, except as
otherwise provided under warranty provisions of this or other Agreements, and
shall not use the equipment in a manner that would subject it to waste or undue
deterioration. Customer shall not, without the prior written consent of
Interactive, sell, lease, encumber or otherwise dispose of the equipment or any
part of it until Interactive's security interest hereunder has been released.
8.3 Should Customer (i) fail to pay any amount specified in this Agreement
when it becomes due, (ii) fail to perform any provision of this Agreement to
be performed by it, (iii) make an assignment for the benefit of creditors, (iv)
suffer the appointment of a receiver for any substantial part of its assets,
(v) institute any proceedings for dissolution of full or partial liquidation,
or (vi) commence proceedings in bankruptcy for liquidation or reorganization,
Customer shall be in default of this Agreement under Division 9 of the Uniform
Commercial Code of California, and Interactive shall have the rights and
remedies afforded a secured party by the chapter on "Default" of Division 9 of
the Commercial Code then in effect. For defaults under sub-paragraphs (i) and
(ii) above, Customer shall have thirty (30) days to cure said default after the
date of written notice from Interactive. In conjunction with the above-named
chapter, but not by way of limitation, Interactive may: Require Customer to
assemble the equipment and software and make it available to Interactive at
Customer's premises or such other location as is mutually agreed by the
parties; render the Software unusable, and apply the proceeds received from the
sale or other disposition of the equipment to, in addition to the items
specified in Division 9 of the Commercial Code, payment of reasonable
attorney's fees and legal expenses incurred by Interactive as a result of
Customer's default.
9. INSTALLATION CERTIFICATION
9.1 Upon Delivery of the purchased Primary Equipment, if any, and Software
or within a reasonable time thereafter, Interactive will conduct the
Installation Certification procedure specified in Schedule A-6 for the
Interactive Software to demonstrate Total System installation and
interoperability. Installation Certification will be performed for the fee
listed in Schedule A-3 and includes loading of the Software onto the Primary
Equipment and the installation of the Software and/or peripheral equipment
necessary to test the operation of one video display terminal or personal
computer and one printer. Customer agrees to cooperate fully with the
Certification process, and upon successful completion of this test procedure to
acknowledge satisfactory completion by endorsing Schedule A-6.
10. IMPLEMENTATION SUPPORT
10.1 Interactive will provide those implementation support services
described in Schedule A-3 which will be reported and billed monthly as the work
is performed. Any support services desired by Customer in excess of those
specified in this
26
4 Business Information System Sales Agreement
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Agreement will, subject to the availability and scheduling of Interactive
personnel, be provided by Interactive at its then-current preferred rates,
plus expenses.
10.2 Product Orientation and General Education Classes will normally be held
at Interactive's facilities, while all other implementation and training
services will be normally conducted at Customer's location. Customer agrees to
make personnel available for education and training pursuant to the training
schedules jointly prepared by Customer and Interactive.
11. LIMITED WARRANTIES
11.1 Equipment, Operating System, Operating Environment, and/or Third-Party
Software purchased or licensed under this Agreement (if any) are warranted by
the manufacturers/licensors thereof. Accordingly, and unless otherwise provided
in Schedule A-7, Interactive makes no warranties of any kind with respect to
such equipment and/or software, except that such equipment and/or software
shall be compatible (i.e., shall operate together without conversion or
modification) when used and maintained as specified as instructed. However,
Interactive will provide reasonable assistance to Customer in making claims on
such warranties and will pass through any warranties granted to it.
11.2 Interactive warrants that for a period of ninety (90) days after
Installation Certification it will correct Confirmed Software Errors in the Base
Software which are reported to it within said period. Interactive does not
warrant that said software is error free.
11.3 As more fully described in paragraph 12 "Software Maintenance", during a
ninety (90) day period after Delivery and installation of such Software,
Interactive will correct Confirmed Software Errors in Customized Software
within the fee quoted for such software in compliance with Specifications.
Interactive does not warrant that said software is error free.
11.4 Software errors reported outside the warranty period, will be corrected
under the provisions of paragraph 12, "Software Maintenance." Interactive shall
not be liable for, but will correct as soon as reasonably possible, any errors
in the User Manuals.
11.5 INTERACTIVE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
12. SOFTWARE MAINTENANCE
12.1 Description. Interactive hereby assumes the obligation to maintain and
support the Interactive Software on the Primary Equipment as described herein.
The service rates referred to below are preferred service rates for customers
on a maintenance contract. All services provided under this Agreement will be
performed on a priority basis over customers who are not under a maintenance
contract. If Customer is not on a maintenance contract, Software maintenance
support will provided at Interactive's then-prevailing standard rates plus
expenses.
12.2 Software Error Correction. Interactive hereby assumes the obligation to
correct Confirmed Software Errors, as described below.
12.2.1 Interactive will correct Confirmed Software Errors in the Base Software
on the Primary Equipment under the maintenance fee. Correction of the Confirmed
Software Errors to Customized Software or to software modified by Customer or a
third party, will be billed at Interactive's preferred service rates. In
addition to correcting Confirmed Software Errors reported by Customer,
Interactive agrees to correct bona fide errors reported against the same Base
Software by other customers, or as otherwise identified by Interactive.
Customer agrees not to attempt correction of apparent errors in Base Software
while this Agreement is in effect, except as authorized by and/or under the
direction of Interactive.
12.2.2 Corrections to the Base Software will be provided to Customer on a
periodic basis at Interactive's discretion in the form of Software Updates to
the Base Software. In order to accommodate Software Updates, Customer agrees to
maintain its copy of the Software at the current Update level and to keep its
copies of the Operating System and Operating Environment upgraded to the latest
Interactive-approved releases. Updates of the Base Software may not include or
accommodate the Customized Software or other modifications to Customer's
software. Work by Interactive to migrate Customer's Software, selectively or
completely, up to said Update level shall be billed at Interactive's preferred
service rates.
12.2.3 In the event that problem which has been reported by Customer as being
due to error or malfunction of Base Software is subsequently found not to be
due to error or malfunction of Software, Customer agrees to pay Interactive, at
Interactive's prevailing preferred rates, for all time and expense incurred in
response to Customer's request for service.
12.3 Interactive Software Upgrades. Interactive will notify Customer of new
Software Upgrades, including a list of all enhancements incorporated since the
prior Software Upgrade. Under the maintenance fee, Interactive shall offer
Customer each new Software Upgrade for no additional license fee for the
Interactive Software listed in Schedule A-2 for Customer's current Primary
Equipment and User configuration. New Interactive Software modules to which
license fees are separately stated by Interactive and which are not explicitly
listed in Schedule A-2 are not included under this provision. New Software
Upgrades may not include or accommodate the Customized Software or other
modifications to Customer's software. Interactive agrees to assist Customer on
a chargeable basis in reconciling a new Software Upgrade with Customer's prior
version of Interactive Software and to provide additional product orientation,
education, and training necessary to implement the new Software Upgrade. If
Customer elects to upgrade to the new Software Upgrade, the maintenance support
provided under this Agreement will continue to be in full force and effect. In
order to accommodate a Software Upgrade, Customer agrees to also upgrade, if a
prerequisite, to the latest Interactive-approved releases of the Operating
System and Operating Environment. Customer acknowledges that new Software
Upgrades are subject to the terms and conditions of this Agreement.
12.4 Telephone Hot-Line Support. Interactive will provide to Customer under
the maintenance fee, during Interactive's normal business hours, first-call
telephone support for the purpose of identifying and diagnosing System problems
associated with the Interactive Software, and to answer any general product
questions in connection with the use of any Software or Equipment which has
been licensed or purchased from Interactive. This support is in addition to any
technical telephone support that may be provided directly by a manufacturer or
licensor under a separate maintenance agreement. Support for the purposes of
this paragraph does not include consulting, training, education, design,
analysis, programming or database maintenance, and Customer remains responsible
for achieving and maintaining self-sufficiency in operating and managing its
System.
12.4.1 Customer shall appoint up to two people as its authorized customer
support contacts. Upon acceptance by Interactive, authorized technical support
contacts may contact Interactive for maintenance support. Authorized technical
support contacts must complete training on the operation and maintenance of the
Software as specified by Interactive.
12.5 Fees. In consideration of the Interactive Software maintenance fee
listed in Schedule A-2, plus travel, telephone, and other reasonable expenses,
Interactive will provide the maintenance support services for the Interactive
Software as described herein. Any maintenance support services performed by
Interactive which are not specifically included under the maintenance fee shall
be chargeable at Interactive's preferred-service rates plus travel and other
reasonable expenses, as specified in Schedule A-5. notwithstanding the
foregoing, during the ninety (90) day period after Delivery and installation of
Customized Software, cumulative charges with respect to such software shall not
exceed the quotation for the Customized Software as defined in the related
Specification. If Customer adds Users to the system or otherwise changes the
Primary Equipment configuration resulting in a higher license fee, the
27
Business Information System Sales Agreement 5
--------------------------------------------------------------------------------
maintenance fee shall be increased, without prior notice, to equal fifteen
percent per annum of Interactive's then-current license fees for the upgraded
System/User configuration. Organizations where more than one copy of
Interactive Software is installed shall pay the specified monthly maintenance
fee for each installed copy. In addition to the monthly fee, Customer agrees to
pay any federal, state or local excise, sales, use, value added, or similar
taxes which may be imposed by a governmental entity in conjunction with
maintenance and support services performed under this Agreement.
12.6 Term. The initial term of maintenance support thereunder shall be for two
years commencing ninety (90) days after Installation Certification. The
maintenance fee is subject to changes in Interactive's published rates after
one year on sixty (60) days written notice. Following the initial term,
maintenance support shall continue subject to termination by either party on
ninety (90) days written notice. Upon such termination, any Interactive
Software maintenance support shall be billed at Interactive's then-current
standard rates.
12.7 Hours of Service. Maintenance support services as defined in this
Agreement will be provided by Interactive's customer service department during
normal business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, excluding
company holidays, at the Interactive office assigned to Customer's account.
12.8 Access to System. Customer agrees to allow Interactive reasonable access
to Customer's computer system and Software in order to provide the necessary
maintenance and support services pursuant to this Agreement and to verify
license status. Customer further agrees to purchase, install and maintain an
Interactive approved modem of at least 9600 baud in order to provide
Interactive remote telephone access to Customer's computer system.
12.9 Reinstatement. If Customer ceases to contract with Interactive for
Interactive Software maintenance support services, Interactive reserves the
right to impose recertification or other applicable fees prior to reinstating
maintenance support services.
12.10 Other Maintenance. Unless otherwise provided in Schedule A-8, maintenance
for the Primary Equipment listed in Schedule A-1, or for the Operating System,
Operating Environment, or Third-Party Software listed in Schedule A-2, if any,
is not included under this Agreement inasmuch as it will be the subject of
maintenance agreements between Customer and the supplier thereof, or other
third-party maintenance supplier. Since proper equipment maintenance is
required for proper system operation, Customer agrees to acquire and keep in
force maintenance agreements on the Primary Equipment. Customer understands and
that Interactive is not a party to such agreements and that corresponding
maintenance fees are determined by the maintenance supplier and are listed in
this Agreement for information purposes only. Should Interactive agree to
provide maintenance support on behalf of an Equipment, Operating System,
Operating Environment, or Third-Party Software supplier(s), then such
maintenance will be contracted for under a separate agreement and included in
Schedule A-8.
13. REMEDIES
13.1 Customer's remedies with respect to the Primary Equipment, Operating
System, Operating Environment and Third-Party Software are set forth in the
manufacturer's Equipment warranty and maintenance agreements and in the
applicable Software licenses, respectively.
13.2 In the event the Base Software fails to substantially perform the
functions specified in the User Manuals, Interactive will, under the warranty
or maintenance support provisions of this Agreement, provide software fixes or
workarounds to achieve the functionality described in the User Manuals. If this
remedy fails to achieve this functionality, Interactive will replace the Base
Software with conforming software.
13.3 Interactive represents and warrants that it has title to or rights
necessary to grant licenses to the Base Software specified in Schedule A-2. In
the event Customer is prevented from using said Software, or such use is
substantially interfered with due to the issuance by a court of competent
jurisdiction of a temporary restraining order, preliminary injunction, or a
final judgment in respect of the infringement of any copyright, trademark,
patent, trade secret or other proprietary right, then, at no additional cost to
Customer, Interactive agrees to (1) acquire for Customer's benefit a license or
other rights for the prior use of said Software and, at Interactive's sole
discretion either to (2) acquire for Customer's benefit a license or other
rights for the continued use of said Software, or (3) render said Software
noninfringing with no substantial loss of functional capability, or (4) replace
infringing Software with noninfringing Software of substantially the same
functional capability. Interactive agrees that it shall at its cost assume and
take the lead in the defense of any claim, action, suit or proceeding alleging
any of said infringements although Customer may participate in the defense
thereof at its own expense through counsel of its own choosing. Notwithstanding
the above, Interactive's obligation hereunder shall not apply to any claim,
action, suit, judgment or proceeding primarily arising from or caused by
software modifications or additions accomplished by Customer, or third-parties.
13.4 IN NO EVENT SHALL INTERACTIVE BE LIABLE FOR (1) ANY EXEMPLARY, SPECIAL,
CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF
BUSINESS PROFITS, LOSS OF USE, OR LOSS OF DATA, REGARDLESS OF THE FORM OF THE
ACTION, WHETHER IN CONTRACT OR IN TORT; OR (2) ANY LOSSES OR DAMAGES RESULTING
FROM ANY CAUSE THAT EXCEED THE PURCHASE PRICE OF THE PARTICULAR DEFECTIVE
SYSTEM COMPONENT.
13.5 Except as otherwise provided below, any controversy or claim arising out
of or relating to this Agreement or the breach of it shall be settled by
arbitration in San Diego County, California, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment upon
the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. Service of a petition to confirm the arbitration award
may be made by United States Mail, postage prepaid, or by any regularly
conducted commercial express mail service, to the attorney for the party or, if
not so represented, to the party at the address set forth herein, or to the
party's last-known business address. The prevailing party in any action related
to or arising under this Agreement shall be entitled to reasonable attorney's
fees.
Notwithstanding the above, claims or proceedings for copyright infringement,
trade secret misappropriation, or trademark infringement are specifically
excluded from this arbitration agreement and shall be separately prosecuted in
a court of competent jurisdiction. Further, the parties agree that each shall
be entitled to seek injunctive relief from a court of competent jurisdiction
notwithstanding the availability or pendency of any arbitration proceeding.
Further, nothing in this paragraph shall impair, waive or otherwise interfere
with Interactive's remedies as a secured creditor under Division 9 of the
Commercial Code of California.
Notwithstanding any provision contained in this paragraph or which may now or
hereafter be contained in the rules of American Arbitration Association, the
parties agree that the arbitrator(s) shall be selected from the High Technology
Panel of arbitrators of the American Arbitration Association. Further, said
arbitrator(s) shall have the power at the arbitrator's discretion to appoint a
Special Master or consultant for the purpose of analyzing technical issues and
preparing a report to the arbitrator on such analysis, and performing such
other tasks as the arbitrator(s) may deem necessary for a fair and proper
determination of the issues submitted to arbitration. The costs of the services
of such Special Master or consultant shall initially be shared equally by the
parties pro rata and shall upon the award be deemed to be expenses of the
arbitration which may be assessed against the losing party. Further, the
arbitrator(s) appointed hereunder shall not have the power to award punitive
damages.
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6 Business Information System Sales Agreement
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13.6 No action arising out of any claimed breach of this Agreement or
transactions thereunder may be brought more than two years after the aggrieved
party learns or should have learned of such breach.
14. EXPORT ASSURANCES
14.1 Customer acknowledges that exportation of the Equipment, Documentation
and/or Software is subject to compliance with the Export Administration Act of
1979 of the United States of America, as amended, and rules and regulations
promulgated from time to time thereunder (collectively, the "Act"), which
restrict exports and re-exports of software media, technical data, and direct
products of technical data.
14.2 Use, disclosure and/or shipment of the Equipment, Documentation, and/or
Software herein is restricted from certain foreign countries in accordance with
50 U.S.C. App. Section 2401, et seq. and 15 C.F.R. 785.1, et seq., unless a
valid license to do so has first been obtained from the U.S. Department of
Commerce, Bureau of Export Administration.
14.3 Customer agrees to indemnify Interactive against any claim, demand,
action, proceeding, investigation, loss, liability, cost and expense, including
attorney's fees, suffered or incurred by Interactive and arising out of or
related to any violation (whether intentional or unintentional) by Customer of
any of the provisions of this section entitled Export Assurances. Nothing in
this section shall be construed to enlarge or otherwise change the licenses
granted herein.
15. GENERAL TERMS
15.1 Neither party shall be liable to the other for default if caused by war,
fire, strike, riot, Act of God, delay of carriers, governmental order or
regulation, complete or partial shutdown of plant, unavailability of equipment
from suppliers, and/or other similar occurrences beyond the reasonable control
of the parties.
15.2 Neither this Agreement nor any rights or obligations hereunder shall be
assigned or otherwise transferred by Customer without the prior written consent
of Interactive, which consent will not be unreasonably withheld. For purposes
of this Agreement, it is agreed, but not by way of limitation, that
Interactive's withholding of consent is not unreasonable if the proposed
assignee is a person, company or other entity that competes with Interactive
directly or indirectly, whether itself or through a parent, subsidiary, or
entity which is owned or controlled by a competitor of Interactive. Further,
Interactive will require the proposed assignee to agree in writing to be bound
by this Agreement. Interactive may assign this Agreement entirely in its
discretion upon the express written assumption of the obligations hereunder by
the assignee.
15.3 Except to the extent that this Agreement is governed by the laws of the
United States, this Agreement shall be governed, interpreted and enforced in
accordance with the laws of the State of California applicable to contracts
between residents.
15.4 This Agreement and its Schedules contain the entire agreement between the
parties hereto, superseding all previous agreements, representations,
understandings and negotiations. No amendment to this Agreement shall be
effective unless it is in writing and signed by duly authorized representatives
of both parties. No term or provision hereof shall be deemed waived and no
breach excused unless such waiver or consent shall be in writing and signed by
the party to or waiver of a breach by the other, whether express or implied,
shall not constitute a consent to, waiver of or excuse for any other, different
or subsequent breach.
15.5 If any term or provision of this Agreement shall be found to be illegal
or unenforceable, the remaining terms and provisions of this Agreement shall
remain in full force and effect.
15.6 This Agreement shall be binding on and shall inure to the benefit of the
heirs, executors, administrators, successors and assignees of the parties
hereto, but nothing in this paragraph shall be construed as a consent to any
assignment of this Agreement by either party except as provided hereinabove.
15.7 The waiver or failure of either party to exercise in any respect any
right provided for in this Agreement shall not be deemed a waiver of any
further or future right hereunder.
15.8 Notices sent hereunder shall be sent first-class mail, postage prepaid,
or by facsimile with first-class mail backup to Interactive and to Customer at
their respective addresses first listed below.
16. ACCEPTANCE
16.1 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and do each hereby warrant and represent that their respective signatory whose
signature appears below has been and is on the date of the Agreement duly
authorized by all necessary and appropriate corporate action to execute this
Agreement.
INTERACTIVE GROUP, INC.
Date: Effective Date:
-------------------------------- ----------------------
-------------------------------------- --------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: President
-------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX Number: ( ) FAX Number: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------
29
Business Information System Sales Agreement 7
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SCHEDULE A
This Agreement applies to equipment, software and support services listed below.
Items listed in the following schedules which are not being purchased herein, if
any, are indicated by the notation "N/A" and are listed for information purposes
only.
A-1 EQUIPMENT SCHEDULE
A-2 SOFTWARE SCHEDULE
A-3 IMPLEMENTATION SUPPORT SCHEDULE
A-4 PURCHASE PRICE SUMMARY
A-5 SERVICES RATE SCHEDULE
A-6 INSTALLATION CERTIFICATION
A-7 THIRD PARTY SOFTWARE LICENSES
A-8 THIRD PARTY MAINTENANCE
A-8.1 Third Party Software
A-8.2 HP Software Support and Software Materials Service
A-8.3 HP Hardware Support Service
30
A-1 Equipment Schedule Business Information System Sales Agreement
--------------------------------------------------------------------------------
Equipment Location:
------------------------------------------
System/Serial Number:
----------------------------------------
Description Price MMC
----------- ----- ---
$ $
Includes:
-------- --------
Total Equipment: $ $
======== ========
* HP Equipment maintenance (Priority Support, except as otherwise noted) is
included for the first year. Second year maintenance is subject to the
then-current rates.
MMC = Monthly Maintenance Charge
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A-1 Equipment Schedule Business Information System Sales Agreement
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Equipment Location:
Pre-Existing Equipment:
The pre-existing equipment listed below has been previously purchased by
the Customer and is listed hereunder for informational purposes only.
Accordingly, the "Price" of said equipment is not applicable and has been
referenced as "N/A".
System/Serial Number:
-----------------------------
Description Price MMC
----------- ----- ---
$ $
Additional Purchased Equipment:
-------------------------------
----- -----
Total Equipment: $ $
===== =====
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A-2 Software Schedule Business Information System Sales Agreement
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Description License Fee MMC
----------- ----------- ---
Operating System ( Users):
---
(UNIX) Operating System $ $
-----
Operating Environment -
Database ( Users):
---
User Interface/Developer (4GL):
SB + License ( User)
---
Interactive Software Schedule ( Users) -
---
Description: Manufacturer's INFOFLO comprising the
following modules:
Third-Party Software:
-------- --------
Total Software Fees: $ $
======== ========
* HP Operating System maintenance (Priority Support, except as otherwise noted)
is included for the first year. Second year maintenance is subject to the
then-current rates.
MMC = Monthly Maintenance Charge
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33
A-3 Implementation Support Schedule Business Information System Sales Agreement
--------------------------------------------------------------------------------
Description Quantity Price
----------- -------- -----
Site Survey $
Installation
Primary Equipment
Peripheral Equipment
Network
Operating Environment
Application Software
Kick-off/Initial Set Up
Schedule Planning
Project Management
Education Classes including: (at Interactive's facilities)
System Administration (UNIX/UniData/SB +)
INFOFLO Module Classes
----------------------------
User Training
Pilot
Live Processing Support
Consulting
Conversion
Modifications
Third-Party Training Classes
Other Support Services
---------
Total Implementation Support: $
=========
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▇▇
▇-▇ ▇▇▇▇▇▇▇▇ Price Summary Business Information System Sales Agreement
--------------------------------------------------------------------------------
System Purchase Prices: Price
----------------------- -----
Equipment $
Operating System Software License
Operating Environment Software License:
Database Software
User Interface/Developer (4GL)
Interactive Software License(s)
Third-Party Software License
---------
Subtotal $
Implementation Support
---------
Total System Purchase Price $
=========
Monthly Maintenance Costs: (Current Configuration)
--------------------------
Equipment $
Operating System Software
Operating Environment Software:
Database Software
User Interface/Developer (4GL)
Interactive Software
Third-Party Software
---------
Total Monthly Maintenance Costs: $
=========
Sales Taxes
-----------
All amounts are subject to applicable taxes as described in Paragraph 4.4 which
shall be paid by Customer in addition to the Total System Purchase Price.
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A-5 Services Rate Schedule Business Information System Sales Agreement
--------------------------------------------------------------------------------
PREFERRED-SERVICE RATE SCHEDULE
EFFECTIVE JANUARY 1, 1996
Charges
-------
Programming/Telephone Support $ 90.00/hour
Implementation Services including: $ 125.00/hour
Project Management
Systems Analysis
Conversion Assistance
Software Upgrades
User Training
Product Orientation Classes:
- At Interactive's facilities $ 300.00/day
(pricing is per student)
- At Customer's facilities $1,650.00/day
(pricing is per instructor)
Holidays and Non-Business Hours $ 200.00/hour
Consulting $1,500.00/day
Materials and Expenses Actual Cost
Magnetic Tapes (all) $ 25.00/each
Travel Time (1/2 Rate)
Mileage Charges $ 0.30/Mile
Notes: 1. Regular (non-preferred) service rates are priced at 150% of preferred
rates.
2. All rates are subject to change with 60-day prior written notice.
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A-6 Installation Certification--Manufacturer's INFOFLO Business Information
System Sales Agreement
---------------------------------------------------------------------------
Customer Name:_______________________ Account Number:__________________
[ ] The Interactive software listed on Schedule A-2 has been installed.
[ ] Appropriate INFOFLO Subsystems:
[ ] Accounts Payable
[ ] Accounts Receivable
[ ] Capacity Management
[ ] Cost Accounting
[ ] Custom Orders
[ ] Engineering
[ ] Executive Information
[ ] General Ledger
[ ] Inventory Control
[ ] Master Production Scheduling
[ ] Material Requirements Planning
[ ] Periodic Processing
[ ] Production Activity Control
[ ] Purchasing
[ ] Quotations
[ ] Sales Orders
[ ] System Utilities
[ ] INFOFLO Test Account
[ ] Other:_______________________________________
[ ] Log on to the INFOFLO test account.
[ ] Enter a General Ledger Chart of Account Number.
[ ] Enter an Inventory General Ledger Code using the account number above.
[ ] Enter an Inventory Class Code.
[ ] Enter an Inventory Item with a type of code of "A" for an assembly. We will
refer to this as the Assembly Number.
[ ] Enter an Inventory Item with a type code of "P" for a purchased part. We
will refer to this as the Inventory Number.
[ ] Enter a ▇▇▇▇ of Material for the Assembly Number above. Enter the Inventory
Number above as the component on the ▇▇▇▇.
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A-6 Installation Certification--Manufacturer's INFOFLO Business Information
System Sales Agreement
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[ ] Enter an Operations Standard code (Ex. Labor).
[ ] Enter an Operations Routing for the Assembly Number above.
[ ] Enter an Employee using the General Ledger account above.
[ ] Enter the shop calendar for the operation entered above.
[ ] Enter a planned order for the Assembly Number for a quantity of 10.
[ ] Enter an MPS item for the Assembly Number above.
[ ] Enter a quantity of 30 in the Active Independent MPS Forecast for the
Assembly Item.
[ ] Run the Active MPS Calculation.
[ ] Print the Active MPS Report.
[ ] Transfer the Active MPS results to the Active MRP.
[ ] Run the Active MRP Calculation.
[ ] Display the MRP Item Status (Active Run) for the Inventory Item above.
[ ] Print the Detailed Capacity (using active MRP) Report.
[ ] Change the planned order above to a firm planned order.
[ ] Display the Material Requirements for the firm planned order above.
[ ] Display the Operations Summary for the firm planned order above.
[ ] Release the firm planned order to production. We will now refer to the firm
planned order as job.
[ ] Print the Shop Traveller for the job on stock paper.
[ ] Enter a miscellaneous material issue to the job for the Inventory Item
above.
[ ] Process a labor distribution entry for the job using the employee and
operations routing entered above.
[ ] Display the material issue and labor distribution entry using the Job
Activity Display.
[ ] Display the Material Requirements for the job.
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[ ] Display the Operations Summary for the job.
[ ] Complete the job.
[ ] Using the Inventory Display, show the Quantity on Hand for the Assembly
Number.
[ ] Enter a Vendor.
[ ] Enter a Purchase Order for the Vendor and Inventory Number above.
[ ] Print the above Purchase Order on stock paper.
[ ] Enter a Purchase Receipt for the above Purchase Order.
[ ] Print the Daily Purchase Receipts report.
[ ] Enter a Quotation Confidence Factor code.
[ ] Enter a Quotation "Valid For" code.
[ ] Enter a Quotation Type code.
[ ] Enter a Quotation for a new prospect.
[ ] Enter a Quotation line item for an Off the Shelf item.
[ ] Enter a Quotation line item for a Made to Order item with a non-inventory
component.
[ ] Enter a Quotation line item for the ezXpert configured item "GRIND",
selecting both salt and pepper grinders.
[ ] Enter a Quotation line item for the ezXpert configured item "GRIND",
selecting only the pepper grinder.
[ ] Print the Quotation on stock paper.
[ ] Enter a Credit Limit code of "OPEN".
[ ] Enter a Territory Code.
[ ] Enter a Salesrep Code.
[ ] Enter a Terms Code.
[ ] Enter a Ship Via Code.
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[ ] Enter a Customer using the codes entered above.
[ ] Enter an Order Type Code.
[ ] Enter a Sales Order for the Customer and Assembly Number above, do not
release to picking.
[ ] Release the Sales Order to picking.
[ ] Print the Picking List for the sales order above on stock paper. The
Picker number will be the Sales Order number followed by an "S1".
[ ] Enter the shipment for the picking list to create an invoice.
[ ] Print the invoice created above on stock paper.
[ ] Run the daily invoice transfer process.
[ ] Display the Customer Account Status for the Customer above showing
the current transactions, which will display the receivable for the
invoice above.
[ ] Enter a Cash Receipt for the Customer and Invoice above.
[ ] Print the Daily Cash Receipts Report.
[ ] Summarize the Cash Receipts Register using the scheduler.
[ ] Print the Cash Receipts Journal.
[ ] Enter a Voucher for the Vendor and Purchase Receipt above.
[ ] Print the Check Preview Report.
[ ] Generate a Payables Check for the Vendor above.
[ ] Print Payables Check on stock paper.
[ ] Authorize the Payables Check.
[ ] Display the Vendor Account Status for the Vendor above, showing
the current transactions, which will display the voucher and check
above.
[ ] Enter an Asset Class Code using the General Ledger account above.
[ ] Enter a major, intermediate, and minor location code.
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[ ] Enter an Asset using the Class and location codes above.
[ ] Logoff.
Software Verified on ___/___ /___ by _________________________
(Date) (Interactive Group, Inc.)
Receipt Acknowledged on ___/___ /___ by _________________________
(Date) (Customer)
Distribution:
-------------
[ ] Customer
[ ] II Sales Administration
[ ] II Accounting
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End-User Sub-License Agreement
This End-User Sub-License Agreement ("Agreement") is a part of and will be
executed coincident with a Business Information System Sales Agreement between
the parties ("Principal Agreement"), into which this Agreement is incorporated
by reference. In consideration for the payment of the license fees listed in
Schedule A-2 of the Principal Agreement, Interactive grants to Sub-licensee
("End User") a non-exclusive, personal and non-transferable right to install
and use the software described in Schedule L1 ("SOFTWARE") on a single
designated computer system. Interactive warrants that it has been granted the
right to issue sublicenses for the SOFTWARE under separate license agreements
with the Owners or Licensors of the SOFTWARE as listed in Schedule L1.
1. PERMITTED USES. Use of the SOFTWARE without a signed Agreement is
specifically prohibited. End-User may use the SOFTWARE only on the designated
computer system listed in Schedule A-1 and for the number of simultaneous users
designated in Schedule A-2 of the Principal Agreement. Use of the SOFTWARE on
any computer system other than the one specified is in violation of this
Agreement. If End-User wishes to use the SOFTWARE on a computer system other
than the one designated or if End-User wishes to increase the number of
simultaneous users allowed, End-User must notify Interactive for each such
additional computer system and obtain a modification to this Agreement for
additional users. End-User shall use the SOFTWARE only for its own internal data
processing requirements.
2. USES NOT PERMITTED. The Owners of the SOFTWARE retain all ownership rights to
the SOFTWARE and any copies or modifications made, and all intellectual property
rights in the SOFTWARE and Source Code shall at all times remain with the Owners
of the SOFTWARE. End-User may not electronically transfer the SOFTWARE or make
any copies of the SOFTWARE Binary Object Code or the SOFTWARE documentation.
End-User may not assign or grant sublicenses, leases, or other rights or
obligations to the SOFTWARE or the SOFTWARE documentation to others, nor may
End-User's copy or other copies of the SOFTWARE or the SOFTWARE documentation to
others, nor may End-User's copy or other copies of the SOFTWARE or SOFTWARE
documentation to others, nor may End-User's copy or other copies of the SOFTWARE
or SOFTWARE documentation be distributed to others. End-User may not rent, sell,
pledge or transfer the SOFTWARE or SOFTWARE documentation, on a temporary or
permanent basis. End-User may not use the SOFTWARE on a computer system other
than the one designated in this Agreement, except on an emergency backup basis,
and may not reverse engineer, disassemble, reverse translate, decompile,
translate, modify, adapt, or in any way derive from it any source code. End-User
may not operate or use the SOFTWARE in a time-sharing or service bureau
capacity.
3. BACKUP COPY. End-User may make archival copies of the SOFTWARE solely for
End-User's own backup purposes. End-User must reproduce and include any
copyrights, trademark notices, and legends on these backup copies. End-User
must maintain an accurate record of the location of such copies at all times.
4. COPYRIGHTS, TRADEMARK NOTICES, LEGENDS AND LOGOS. The SOFTWARE and User
manuals, logos, product names, and other support materials, if any, are either
patented, copyrighted, trademarked, or otherwise proprietary to the Owners of
the SOFTWARE or Interactive and cannot be copied, modified, or transferred
without the express written permission of the owner. End-User agrees not to
remove any such notices and product identification, and to treat the SOFTWARE
with the same degree of care used to protect End-User's own confidential
information.
End-User shall at all times (whether during the continuance of the Agreement or
thereafter) keep confidential all information which is marked confidential and
obtained in connection with the Agreement and shall not disclose the same to
any person (except to those of its employees or agents whose duties under the
Agreement cannot be fulfilled without such disclosure) and shall ensure that
any such employees or agents to whom the same is disclosed shall keep it
confidential. These provisions shall not apply to information which was
lawfully in the possession of such party prior to the commencement of
negotiations leading to the Agreement, which is already public knowledge, or
becomes so at a future date. The End-User further acknowledges that any
amendments, additions, variations or enhancements made to the SOFTWARE shall
not infringe the copyright of any third-party, and shall indemnify the Owners
of the SOFTWARE and Interactive accordingly.
5. TERM. This Agreement shall commence on the date of acceptance by
Interactive, as noted in the Principal Agreement, and is effective until
terminated. End-User may terminate this Agreement following the expiration or
termination of End-User's obligations with written notification and by
returning and/or destroying the SOFTWARE and SOFTWARE documentation and all
copies thereof. This Agreement will also terminate if End-User fails to comply
with any term or condition herein. End-User agrees upon such termination by
Interactive and the Owners of the SOFTWARE to certify in writing that all
copies of the SOFTWARE and SOFTWARE documentation have been returned and/or
destroyed. Upon termination, there will be no refund of any monies or other
consideration paid by End-User.
6. LIMITED WARRANTY. THE OWNERS OF THE SOFTWARE WARRANT THAT THEY HAVE CLEAR
RIGHT AND TITLE TO THE SOFTWARE AND THAT THE SOFTWARE AS FURNISHED WILL BE FREE
FROM DEFECTS IN MATERIAL AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD OF
NINETY (90) DAYS FROM THE DATE OF DELIVERY TO END-USER. THE OWNERS OF THE
SOFTWARE WARRANT THAT THE SOFTWARE WILL PERFORM IN SUBSTANTIAL ACCORDANCE WITH
THE ACCOMPANYING WRITTEN SOFTWARE DOCUMENTATION. THE SOFTWARE AND SOFTWARE
DOCUMENTATION IS PROVIDED "AS IS", WITH THE LIMITED WARRANTY HEREIN AND NO
OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE
OWNERS OF THE SOFTWARE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE
SOFTWARE WILL MEET END-USER'S REQUIREMENTS OR THAT ITS OPERATION WILL BE
UNINTERRUPTED OR ERROR FREE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO END-USER. THIS WARRANTY
GIVES END-USER SPECIFIC LEGAL RIGHTS, AND END-USER MAY ALSO HAVE OTHER RIGHTS
WHICH VARY FROM STATE TO STATE.
7. LIMITATION OF REMEDIES. Interactive's and the Owner's of the SOFTWARE entire
liability and End-User's exclusive remedy shall be:
a. refund of purchase price within ninety (90) days of purchase if the seal is
unbroken on the package, and the package is returned to Interactive or the
Owners of the SOFTWARE.
b. the replacement or repair of any media not meeting the "Limited Warranty"
requirements of this Agreement that is returned to Interactive or the Owners of
the SOFTWARE within ninety (90) days of purchase.
c. termination of this Agreement, and refund of End-User's licensing fee, by
returning the SOFTWARE and SOFTWARE documentation and all copies thereof, in
the event that Interactive or the Owners of the SOFTWARE are unable to deliver
replacement media that is free of defects in materials or workmanship found
within ninety (90) days of purchase.
If it is determined that the SOFTWARE has been damaged or misused in any way,
or if the label or serial number has been altered in any way, the Limited
Warranty set forth above does not apply.
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IN NO EVENT WILL INTERACTIVE OR THE OWNERS OF THE SOFTWARE BE LIABLE TO
END-USER FOR ANY DAMAGES, INCLUDING LOST PROFITS, LOST SAVINGS, OR OTHER
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE
SUCH SOFTWARE AND SOFTWARE DOCUMENTATION, EVEN IF INTERACTIVE OR THE OWNERS OF
THE SOFTWARE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR OF ANY
CLAIM BY ANY OTHER PARTY. IN ADDITION, INTERACTIVE OR THE OWNERS OF THE
SOFTWARE SHALL NOT BE LIABLE FOR ANY CLAIM BY END-USER OR ANY OTHER PARTY FOR
DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE SUCH SOFTWARE AND SOFTWARE
DOCUMENTATION. SOME STATES DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY
FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION
MAY NOT APPLY TO END-USER.
8. INDEMNITY.
8.1 Interactive and the Owners of the SOFTWARE shall indemnify the End-User
against costs and damages arising from any infringement of copyright, or other
intellectual property rights in respect of the SOFTWARE, or any part thereof,
provided that such infringement is not caused or contributed to by any acts or
omissions of the End-User other than the use of the SOFTWARE and provided that:
(a) the End-User notifies Interactive promptly in writing of any allegation of
infringement;
(b) the End-User does not make any admissions without the prior written consent
of Interactive or the Owners of the SOFTWARE, and
(c) the End-User allows Interactive and the Owners of the SOFTWARE, at their
request, to conduct and/or settle all negotiations and litigation and provides
Interactive and the Owners of the SOFTWARE, with all reasonable assistance;
(d) the End-User allows Interactive or the Owners of the SOFTWARE to make such
alterations, modifications or adjustments to the SOFTWARE so that it becomes
non-infringing, or alternatively replace the Software with non-infringing
substitutes.
8.2 The foregoing indemnity states Interactive and the Owners of the SOFTWARE
entire liability in respect of copyright or other intellectual property rights,
and does not extend to any infringements from modification of any sort made by
the End-User to the SOFTWARE, from the use of Equipment other than the Hardware
and/or Operating Software as set out in Schedules A-1 and A-2 of the Principal
Agreement, respectively, or from the use of the SOFTWARE in combination with
other software products not supplied by Interactive.
9. UPDATE POLICY. Interactive may, at its sole discretion, advise End-User of,
and Sub-license End-User's use of, PRODUCT UPDATES and NEW RELEASES of the
SOFTWARE at the current prices for such PRODUCT UPDATES and NEW RELEASES. This
Agreement does not bind Interactive or the Owners of the SOFTWARE in any way to
provide PRODUCT UPDATES and NEW RELEASES. All PRODUCT UPDATES and NEW RELEASES
that are provided to End-User shall be governed by the same terms of this
Agreement.
10. ASSIGNMENT. Sub-licensee shall not assign or subcontract all or any part of
this Agreement without the prior written consent of Interactive, which will not
be unreasonably withheld.
11. COMPLETE AGREEMENT. The terms set out in this Agreement are the only terms
and conditions on which the SOFTWARE is to be provided and supersede all
proposals, oral or written, and all other communications between the parties in
relation to the subject matter of this Agreement and all other terms,
conditions, warranties, representations or implications are, to the full extent
permitted by law, hereby expressly excluded.
12. U.S. GOVERNMENT RESTRICTED RIGHTS. The SOFTWARE and SOFTWARE documentation
are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the
Government is subject to restrictions as set forth in subparagraph (c)(1)(ii)
of The Rights in Technical Data and Computer Software clause of DFARS
252.227-7013 or subparagraphs (c)(1) and (2) of Commercial Computer Software --
Restricted Rights at 48 CFR 52.227-19, as applicable. In addition, End-User
agrees to comply with all export restrictions and regulations with respect to
the SOFTWARE that are imposed by the U.S. Government or the Government of the
country to which the SOFTWARE is shipped.
13. MISCELLANEOUS.
(a) Applicable Law. This Agreement shall be governed by the laws of the State
of California, including such state's Uniform Commercial Code, except that if
any provisions of this Agreement shall be inconsistent therewith, the terms of
this Agreement shall prevail.
(b) Cumulation of Remedies. All remedies available to any of the parties for
breach of this Agreement are cumulative and may be exercised concurrently or
separately, and the exercise of any one remedy shall not be deemed an election
of such remedy to the exclusion of other remedies.
(c) Severability. Any invalidity, in whole or in part, of provision of this
Agreement shall not affect the validity of any other of its provisions.
(d) Notices. Any notice or other communication hereunder shall be in writing.
(e) Waiver. No term or provision hereof shall be deemed waived and no breach
excused unless such waiver or consent shall be in writing and signed by the
party claimed to have waived or consented.
(f) Arbitration. Any controversy or claim arising out of or relating to this
Agreement or the breach of it shall be settled by arbitration, subject to
paragraph 13.5 of the Principal Agreement.
14. ACCEPTANCE. IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and do each hereby warrant and represent that their respective
signatory whose signature appears on the Principal Agreement has been and is on
the date of the Agreement duly authorized by all necessary and appropriate
corporate action to execute this Agreement.
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SCHEDULE L1: SOFTWARE
---------------------
UNiDATA, INC. PRODUCTS
----------------------
- RDBMS
- USAM (Print)
- SB + INFOFLO Runtime
- SB + Developer
New products will be classified as determined by owners or licensors of
SOFTWARE. SOFTWARE licensed for use under this AGREEMENT is in object code
format only.
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A-8.1 Third-Party Software
Maintenance Agreement
1. PREAMBLE. This Third-Party Software Maintenance Agreement ("Agreement") is
part of and will be executed coincident with a Business Information System
Sales Agreement between the parties ("Principal Agreement"), into which this
Agreement is incorporated by reference. This Agreement is made between
Interactive Group, Inc., a corporation organized and existing under the laws of
the State of California and having its principal place of business at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Interactive"), and the
licensee of the products listed on Schedule M1 ("Sub-licensee").
2. THE SERVICES. In consideration of the payment to be made to Interactive,
Interactive agrees to provide the services described in this Agreement
("Services"), with respect to the Software as listed in Schedule M1
("Software"). Interactive warrants that it has been authorized under separate
Maintenance Agreements with the Owners of the Software as listed in Schedule M1
to provide the Services described herein.
3. ENTIRE AGREEMENT. This Agreement, including all documents referenced
herein, constitute the entire Agreement between Interactive and Sub-licensee
and supersedes all proposals, oral and written, between the parties on this
subject. Such Services shall be provided only on Software properly licensed and
only to those locations and on those machines specified in such licenses.
4. SERVICE RESPONSIBILITIES OF INTERACTIVE.
(a) Maintenance. Interactive will install the Software. Interactive shall
provide first-call support, including any questions on the use, implementation
or configuration of the Software. Interactive will maintain the Software during
normal business hours so that it operates in conformity with all descriptions
and specifications herein, including specifications of all improved or modified
versions of the Software that the Sub-licensee has been licensed to use.
Interactive and the Owners of the Software shall correct all errors discovered
by the Sub-licensee in accordance with the terms of this Agreement.
(b) Support. In the event that Sub-licensee detects any error or defect in the
Software, Interactive shall furnish complete off-site telephone support, in the
form of consultations, assistance, and advice on the use and maintenance of the
Software. Interactive shall log and classify the severity of the error or
defect, and in collaboration with the Owners of the Software will respond in a
timely and diligent manner to provide a correction to the error or defect.
(c) Interactive may from time to time furnish new releases of the Software
provided by the Owners of the Software with corrections of errors and defects
and expanded or enhanced functionality. While this Agreement is in force,
Interactive will provide Sub-licensee with such releases on all licensed copies
of the Software for a media and handling fee.
(d) Services will be provided only for operation of the Software under the
conditions and in the environment for which it was designed as determined by
the Owners of the Software. Interactive will provide the Services for the
Software only on the release level current at the time of service and the
immediately preceding release level. The Owners of the Software and Interactive
may, within their sole discretion, provide support on previous release levels,
for which Sub-licensee may be required to pay time and materials for the
services rendered.
5. RESPONSIBILITIES OF THE SUB-LICENSEE.
(a) The Sub-licensee shall notify Interactive immediately following the
discovery of any error or defect in the Software, unless such error or defect
is discovered after 5:00 p.m. on a business day. In that case, the Sub-licensee
shall notify Interactive by 10:00 a.m. on the following business day. In the
event that an error or defect is discovered between 5:00 p.m. Friday and 9:00
a.m. Monday, the Sub-licensee shall notify Interactive of the error or defect
by 10:00 a.m. on the Monday morning immediately following the weekend during
which the error or defect was discovered. The period within which Interactive
is obligated herein to provide the services shall not commence until such time
as Interactive receives the Sub-licensee's notification of the error or defect.
(b) The Sub-licensee, upon detection of any error or defect in the Software,
shall, if requested to do so by Interactive, submit to Interactive a listing of
output and any such other data which Interactive reasonably may request in
order to reproduce operating conditions similar to those present when the error
or defect occurred or was discovered, as the case may be.
6. CHARGES. Sub-licensee shall pay to Interactive the monthly fee as listed
in Schedule A-2 of the Principal Agreement. These charges shall cover all
Services provided under this Agreement, and all charges shall be due and
payable within 10 days after receipt of invoice.
7. TERM. This Agreement shall commence on the date of acceptance by
Interactive, as noted in the Principal Agreement, and continue through the
first annual period. The expiration date of the Agreement shall be extended, if
necessary, to fall on the end of the last day of the month during which the
Agreement is scheduled to expire. The Agreement shall automatically renew for
additional one year terms unless either party gives ninety (90) days written
notice prior to the expiration date of their intent not to renew.
8. WARRANTIES.
(a) The Owners of the Software warrant that they will maintain the Software so
that such Software will be free from significant programming errors and from
defects in workmanship and materials and shall conform to the performance
capabilities, specifications, functions and other descriptions applicable
thereto as set forth in the license agreement applicable to the Software, so
that the Software will operate in conformity with all improvements, additions,
or modifications of the Software installed at Sub-licensee's site or sites.
(b) This warranty shall be null and void if Sub-licensee has modified the
Software.
(c) EXCEPT FOR THE EXPRESS WARRANTY AND LIMITED REMEDIES LISTED ABOVE IN THIS
SECTION 8, THE OWNERS OF THE SOFTWARE AND INTERACTIVE DISCLAIM ALL WARRANTIES,
INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, THE OWNERS OF THE SOFTWARE AND INTERACTIVE SHALL NOT BE LIABLE TO
SUB-LICENSEE OR ANY OTHER INDIVIDUAL OR ENTITY FOR ANY INCIDENTAL, SPECIAL,
INDIRECT, OR CONSEQUENTIAL DAMAGES OCCURRING OUT OF OR IN CONNECTION WITH THE
DISTRIBUTION, USE, OR PERFORMANCE OF THE SOFTWARE, LOSS OF DATA, PROGRAMS, OR
PROFITS, OR FROM THE TERMINATION OF THIS AGREEMENT FOR ANY REASON, EVEN IF THE
OWNERS OF THE SOFTWARE AND INTERACTIVE KNEW OR SHOULD HAVE KNOWN OF SUCH
DAMAGES. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE TERM OF
ACTION, WHETHER IN CONTRACT OR TORT.
9. ASSIGNMENT. Sub-licensee shall not assign or subcontract all or any part
of this Agreement without the prior written consent of Interactive, which will
not be unreasonably withheld.
10. COMPLETE AGREEMENT. The terms set out in this Agreement are the only
terms and conditions on which the
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A-8.3 HP Hardware Support Service
Maintenance Agreement
(This Agreement is part of the Business Information System Sales Agreement
between Interactive and Customer ("Principal Agreement"), into which this
Agreement is incorporated by reference. Interactive warrants that this
Agreement includes general terms and conditions for all levels of HP Hardware
Support Services for the on-site hardware designated in Schedule A-1 of the
Principal Agreement, as well as specific terms and conditions for Priority
Support (02A) and Next Day Support (02C). HP Hardware Support Service is
governed by the following terms and conditions:
1. SERVICES INCLUDED.
1.1 On-site Service
Interactive will arrange for HP to travel to Customer's site and provide all
labor, parts, and materials necessary to maintain the products covered under HP
Hardware Support Service in good operating condition. Replacement parts will be
new or their equivalent; replaced parts will become the property of HP. This
service includes:
(a) Repair Service. This service involves the diagnosis and correction of
product malfunction and failures. Remedies may consist of temporary procedures
to be followed by Customer while a permanent solution is being sought. Repair
service will commence during the period of coverage and will continue
uninterrupted, as long as reasonable progress is being made, until the products
are operational. If HP determines additional parts or resources are required,
service will be interrupted and will resume as soon as these parts or resources
are available; however, with HP Scheduled Support, work will commence on the
following business day.
(b) Preventive Maintenance (Selected HP Products). This service includes
cleaning, adjusting, lubricating, inspecting and testing products that require
preventative maintenance. HP will perform preventative maintenance on a
mutually agreed upon schedule or coincident with Repair Service.
(c) Engineering Improvements. HP may from time to time make engineering
improvement modifications which it deems necessary to incorporate in Customer's
products. Such modifications will be performed at HP's expense on a mutually
agreed upon schedule coincident with Repair Service or Preventative
Maintenance.
(d) Site Environmental Survey. Interactive and/or HP will periodically monitor
the site environment and notify Customer of any required corrective actions.
(e) Response Time. Response Times for HP Hardware Support Service are specified
in Table 1 below. They are based on the level of support selected by Customer
and the distance between the location of the products and the nearest HP
Primary Service Responsible Office (SRO) indicated in the "HP Travel and Office
Directory".
Table 1
Distance from HP
Zone Primary SRO Response
---- ---------------- --------
Priority Next Day
1, 2, 0-100 Miles 4 Hours Next Day
3, 4, 5 101-200 Miles 1 addl Day
Other Beyond 200 Miles 8 Hours* *
*Established at order & subject to resource availability
1.2 HP Remote Support Services (Selected HP Products)
Prior to any necessary on-site assistance, HP may use a qualified diagnostic
modem to perform the following services:
(a) Remote Diagnostics. HP Hardware Support Service will include the execution
of HP programs, via a telephone line, to examine Customer's system, system
logfiles, and disk error files to identify the malfunctioning product.
Diagnostics will be performed only upon receipt of Customer's authorization.
Customer is responsible for implementing recommended temporary procedures while
a solution is being sought. If the results of Remote Diagnostics are
inconclusive, HP will respond on-site as described in Clause 1.1(a) above.
(b) HP Predictive Support. HP Hardware Support Service allows Customer to use
HP Predictive Support proprietary software which reads and analyzes system and
peripheral error logfiles and prints a status report of the system's
functioning. HP Predictive Support software will send data to the HP Response
Center for further analysis and diagnosis. If HP determines that on-site action
is needed, it will be performed as described in Clause 1.1(a) above.
2. OPTIONAL SERVICES.
HP provides the following optional services (subject to local resource
availability) for an additional charge. Per-call options require Customer to
have an open purchase order on file with HP specifying all persons authorized
to request these services.
2.1 Per-Call Options
(a) HP After Hours Coverage Option. HP Hardware Support Service may be extended
for a fixed charge on a per-call basis for hours and days beyond those covered
by the HP Hardware Support Service level selected by the Customer. The charge
and response time will vary depending on the time the service is requested and
the level of HP Hardware Support Service the Customer has purchased.
(b) Per-Call Services. HP Hardware Support Service Customers who require
support not covered hereunder, such as de-installation, may purchase one-time
services at the HP Hardware Support per-call service rate. This rate only
applies to services performed on products covered by the HP Hardware Support
Service.
2.2 Contractual Options.
(a) Media Retention Service. This option waives HP's right to maintain
possession of a failed disk drive component on which sensitive data is stored.
3. LIMITATIONS OF SERVICE.
(a) Software and Network Support (Selected HP Products). Any maintenance
services involving software or network related problems will be subject to
Interactive and/or HP's standard service rates unless the products are covered
by an appropriate software or network support services contract.
(b) Maximum Use Limitations. Products operated in excess of their maximum usage
rate (as specified in the data sheet or operating manual) will not be covered
by HP Hardware Support Service and can only be serviced at Interactive and/or
HP's standard service rates.
(c) Obsolete Products. Under HP Hardware Support Service, HP may cover obsolete
products which are beyond their specified support period, on a best efforts
basis.
(d) Interfaces and Accessories. HP may cover cables, connectors, accessories
and interfaces under HP Hardware Support Service, provided the product in which
they are used is covered at the same level of HP Hardware Support Service.
(e) HP Predictive Support. Interactive and/or HP will not be responsible if HP
Predictive Support software does not identify or remedy system or peripheral
problems prior to actual occurrence.
(f) Availability. The availability of HP Hardware Support Service levels at the
time of order may vary, depending on local resources.
4. PREREQUISITES.
(a) Minimum System Configuration. Except for systems capable of diagnostic
self-test, HP Hardware Support Service requires, at a
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minimum, that a system include a central processing unit, a peripheral capable
of reading standard HP diagnostics and verification tests, and a peripheral
which allows HP to fully interact with the covered products.
(b) Uniform Coverage. The central processing unit and all HP system products
constituting the minimum system configuration must be covered under the same HP
Hardware Support Service level.
(c) Connectors and Cables. All products covered under HP Hardware Support
Service must be interconnected by cables or connectors listed in the
appropriate HP documentation as compatible with the central processing unit.
For HP products not meeting this requirement, service is available at
Interactive and/or HP's standard service rates.
(d) Software Support. All HP Products for which execution of diagnostic tests
is software dependent must, at a minimum, be covered by an HP Software Support
Service, if available, which provides periodic software updates.
5. CUSTOMER RESPONSIBILITIES.
(a) Access. Customer will provide Interactive and/or HP with the following:
- Access to the products covered under HP Hardware Support Service;
- Adequate working space and facilities within a reasonable distance of the
products;
- Access to and use of all information and facilities determined necessary by
Interactive and/or HP to service the products;
- Access to a qualified diagnostic modem upon initiation of remote support
(selected HP products).
(b) Service Calls. Prior to placing a service request with Interactive,
Customer may be required to run HP supplied diagnostic programs.
(c) Operating Procedures. Customer will follow routine operating procedures as
specified in the HP Operating Manual for the products.
(d) Remote Support (Selected HP Products). Customer will allow HP to keep
system diagnostic programs resident on Customer's system for the exclusive
purpose of performing diagnostics. Customers using HP Predictive Support must
use the electronic data transfer capability provided by HP Predictive Support
software to inform HP of events identified by this software. Customer
acknowledges Customer has no ownership interest in diagnostic software provided
by HP and that HP will remove these diagnostic programs and any HP-loaned
modems upon termination of HP Hardware Support Service.
(e) Remote Support Configuration (Selected HP Products). Systems with remote
support capability must be configured by Customer to permit access to one
voice-grade telephone line and one data-quality telephone line and both must
have terminations located near Customer's system.
HP will make the final judgment as to whether Customer adequately meets the
prerequisites for the services outlined herein.
6. PRIORITY SUPPORT (02A).
The following additional terms and conditions apply when Customer selects
Priority Support.
(a) Services Included. Period of Coverage - Interactive and/or HP will perform
Priority Support between 8:00 a.m. and 5:00 p.m., Monday through Friday,
excluding Interactive and/or HP published holidays.
(b) Optional Services. HP can provide faster response time for Priority Support
for HP travel zones 1, 2 or 3 for an additional charge (subject to local
resource availability).
7. NEXT DAY SUPPORT (02C).
The following additional terms and conditions apply when Customer selects Next
Day Support.
7.1 Services Included. Period of Coverage - HP will perform Next Day Support
between 8:00 am and 5:00 pm, Monday through Friday, excluding HP published
holidays.
7.2 Optional Services. HP can provide improved response time on a Per-Call
basis for an additional charge, subject to local resource availability.
7.3 Limitations
(a) Service Location. HP offers Scheduled Support from HP Primary and Secondary
SROs to Customer sites located in travel zones 1, 2 and 3 as specified in the
"HP Travel and Office Directory". HP will repair products only at a specified
site to be designated by Customer at the time Scheduled Support is ordered.
(b) Product Eligibility. Only designated products included on Schedule A-1 of
the Principal Agreement, except as otherwise noted, are eligible for Scheduled
Support.
7.4 Prerequisites
(a) Customer Eligibility. Scheduled Support is only available for Customers
meeting the minimum requirement of thirty-five (35) units.
7.5 Customer Responsibilities
(a) Work Area. Customer must designate a single work area acceptable to
Interactive and/or HP at the specified site. This area must include shelves or
racks for incoming and outgoing products, adequate open bench workspace,
adequate power and lighting, and access to a telephone. The work area must be
accessible within fifteen (15) minutes of the arrival of HP at the specified
site.
(b) Preparation. Customer is responsible for performing the following functions
before having a product serviced under Scheduled Support:
- Maintain a written log of model number, serial number and current failure
symptoms. This information should be provided to Interactive and/or HP upon
request before the scheduled visit.
- Locate all failed units to be repaired during a scheduled visit at the
designated work area before the arrival of an HP Customer Engineer.
- Call Interactive and/or HP on the workday before the day of the scheduled
visit to provide information regarding number and type of products requiring
repair.
8. CHARGES.
(a) Customer shall pay to Interactive an annual fee paid monthly in advance as
specified in Schedule A-1 of the Principal Agreement. These charges shall cover
all services specifically included under this Agreement and shall be paid upon
receipt of the invoice for such services.
(b) Charges are exclusive of use, sales, value added and other taxes. When
applicable, such taxes will appear in Interactive's invoice.
(c) After the initial term of this Agreement, Interactive may increase support
charges upon thirty days notice prior to invoicing at the increased rate.
9. TERM.
This Agreement shall commence on the date of acceptance by Interactive and
continue through the first annual period. The expiration date of the Agreement
shall be extended, if necessary, to fall on the end of the last day of the
month during which the Agreement is scheduled to expire. This Agreement shall
automatically renew for additional one year terms unless either party gives
ninety (90) days written notice prior to the expiration date of their intent
not to renew.
10. WARRANTIES.
HP warrants that its hardware products will not fail to execute their
designated functions due to defects in materials and workmanship. If HP
receives notice of such defects during the warranty period, HP shall replace
hardware which does not execute its designated functions due to such defects.
HP does not warrant that the operation of the hardware shall be uninterrupted
or error free.
Page 2/2
47
A-8 Third-Party Maintenance Business Information System Sales Agreement
-------------------------------------------------------------------------------
MAINTENANCE is to be provided and supersede all proposals, oral or written, and
all other communications between the parties in relation to the subject matter
of this Agreement and all other terms, conditions, warranties, representations
or implications are, to the full extent permitted by law, hereby expressly
excluded.
11. MISCELLANEOUS.
(a) Applicable Law. This Agreement shall be governed by the laws of the State
of California, including such state's Uniform Commercial Code, except that if
any provisions of this Agreement shall be inconsistent therewith, the terms of
this Agreement shall prevail.
(b) Cumulation of Remedies. All remedies available to any of the parties for
breach of this Agreement are cumulative and may be exercised concurrently or
separately, and the exercise of any one remedy shall not be deemed an election
of such remedy to the exclusion of other remedies.
(c) Severability. Any invalidity, in whole or in part, of any provision of this
Agreement shall not affect the validity of any other of its provisions.
(d) Notices. Any notice or other communication hereunder shall be in writing.
(e) Waiver. No term or provision hereof shall be deemed waived and no breach
excused unless such waiver or consent shall be in writing and signed by the
party claimed to have waived or consented.
(f) Arbitration. Any controversy or claim arising out of or relating to this
Agreement or the breach of it shall be settled by arbitration, subject to
paragraph 13.5 of the Principal Agreement.
12. ACCEPTANCE. IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and do each hereby warrant and represent that their respective
signatory whose signature appears on the Principal Agreement has been and is on
the date of the Agreement duly authorized by all necessary and appropriate
corporate action to execute this Agreement.
THE SOFTWARE IS LICENSED FOR THE SINGLE COMPUTER SYSTEM LISTED IN SCHEDULE A-1
OF THE PRINCIPAL AGREEMENT. USE OF THE SOFTWARE ON ANY COMPUTER SYSTEM OTHER
THAN THE ONE SPECIFIED ABOVE IS IN VIOLATION OF THIS AGREEMENT.
SCHEDULE M1: SOFTWARE
UNiDATA, INC. PRODUCTS
- RDBMS
- USAM (Print)
- SB+ INFOFLO Runtime
- SB+ Developer
New products will be classified as determined by owners or licensors of
SOFTWARE. SOFTWARE licensed for use under this AGREEMENT is in object code
format only.
Page 2/3
48
A-8 Third Party Maintenance Business Information System Sales Agreement
===============================================================================
A-8.2 HP BasicLine Software Support and Software
Update Materials Service
Maintenance Agreement
This Agreement is a part of the Business Information System Sales Agreement
between INTERACTIVE Group, Inc. and Customer ("Principal Agreement"), into
which this Agreement is incorporated by reference. HP BasicLine Software Support
("HP BasicLine Support") and Software Update Materials Service is governed by
the following terms and conditions of this Agreement.
1. SERVICES INCLUDED.
(a) Right to Use and Copy Updates. Customer receives the right to use software
material updates provided under HP Software Update Materials Service and may
make one copy of the updates from any system covered by HP BasicLine Support.
(b) Software Updates. As improvements are developed for HP software, they will
be incorporated into planned software updates. Interactive will provide one
copy of these updates to Customer's System Manager as they become available.
(c) Firmware Updates. Customer receives the right to use firmware updates on
the system. When applicable, Interactive will provide Customer with one copy of
firmware updates.
(d) Reference Manual Updates. Interactive will send one copy of the
appropriate reference manual updates or revisions to the System Manager as they
become available. For some products, additional copies of the reference manual
updates may be purchased through Interactive.
(e) Software Status Bulletin. Interactive will mail one copy of the Software
Status Bulletin to the System Manager periodically depending on System type.
For some products, additional copies of the Software Status Bulletin may be
purchased through Interactive.
(f) HP Communicator/Newsletter. Interactive will periodically mail to the
System Manager one copy of the HP Communicator/Newsletter for the System. For
some products, additional copies of the HP Communicator/Newsletter may be
purchased through Interactive.
2. LIMITATIONS OF SERVICE.
(a) Hardware and Network Support. Any maintenance services involving hardware
or network-related problems will be subject to Interactive's and/or HP's
standard service rates unless the products are covered by an appropriate
hardware or network support service contract.
(b) Supported Software Versions. Interactive provides contractual support only
for the current and immediately preceding versions of Software, and only when
used with hardware that is included in HP-specified configurations.
(c) Data Recovery. Data recovery services are not included as part of HP
BasicLine Support, regardless of the cause of data loss. Customers requesting
Interactive to perform data recovery will be charged at Interactive's standard
service rates.
(d) Software Update Installation. Installation of the software updates is
Customer's responsibility or is available from Interactive at standard service
rates.
3. PREREQUISITES.
(a) Customer must purchase HP BasicLine Support that corresponds to Customer's
processor, number of maximum users, and each family of application software for
which Customer is running any product in that family on any system supported by
the System Manager.
(b) Customer must purchase the appropriate update materials that correspond to
Customer's processor and number of maximum users.
(c) Customer must purchase HP Software Update Materials Service, if available,
for each software product on each system for which Customer desires Interactive
to deliver update materials.
(d) Customer must identify someone responsible for receipt of the update
material.
(e) HP Software Update Materials may be purchased only for software for which
Customer has rightfully acquired an appropriate HP software license.
4. CUSTOMER'S RESPONSIBILITIES.
(a) Customer will follow routine operating procedures as specified in the HP
operating manual for the products. Interactive may require Customer to return
the software on its original media to be eligible to receive software updates.
(b) A System Manager and designated alternate trained through completion of the
appropriate Interactive and/or HP training course(s) or having equivalent HP
experience must be identified as contacts for Interactive.
5. SOFTWARE LICENSE AND COPYRIGHTS.
(a) HP grants Customer the right to use updates and derivatives of the software
provided by HP on any one computer according to the same HP Software License
Terms applicable to Customer's license of the software covered by this service.
(b) Customer acknowledges that it does not own and has no right, title or
interest in the updates or derivatives except as set forth in HP's Software
License Terms.
(c) Customer agrees to reproduce and conspicuously affix HP's copyright and
trademark notices to each copy of an update or derivative made by Customer.
6. TELEPHONE HOT-LINE SUPPORT.
Interactive will provide to Customer under the maintenance fee, during
Interactive's normal business hours, first call telephone support for the
purpose of identifying and diagnosing system problems associated with the
software. Support for the purposes of this paragraph does not include
consulting, training, education, design, analysis, programming or database
maintenance, and Customer remains responsible for achieving and maintaining
self-sufficiency in operating and managing its system.
7. CHARGES.
(a) Customer shall pay to Interactive an annual fee paid monthly in advance as
specified in Schedule A-2 of the Principal Agreement. These charges shall cover
all services specifically included under this Agreement and shall be paid upon
receipt of the invoice for such services.
(b) Charges are exclusive of use, sales, value added and other taxes. When
applicable, such taxes will appear on Interactive's invoice.
(c) After the initial term of this Agreement, Interactive may increase support
charges upon thirty days notice prior to invoicing at the increased rate.
8. TERM.
This Agreement shall commence on the date of acceptance by Interactive, and
continue through the first annual period. The expiration date of the Agreement
shall be extended, if necessary, to fall on the end of the last day of the
month during which the Agreement is scheduled to expire. The Agreement shall
automatically renew for additional one year terms unless either party gives
ninety (90) days written notice prior to the expiration date of their intent
not to renew.
Page 1/2
49
A-8 Third Party Maintenance Business Information System Sales Agreement
===============================================================================
9. WARRANTIES.
HP warrants that its software and firmware products designated by HP for use
with a hardware product, when properly installed on that hardware product, will
not fail to execute their programming instructions due to defects in materials
and workmanship. If HP receives notice of such defects during the warranty
period, HP shall replace software media and firmware which do not execute their
programming instructions due to such defects. HP does not warrant that the
operation of the software, firmware or hardware shall be uninterrupted or error
free.
If HP is unable, within a reasonable time, to repair or replace any product to
a condition as warranted, Customer shall be entitled to a refund of the
purchase price upon return of the product to HP.
(a) Limitation of Warranty. The foregoing warranty shall not apply to defects
arising from:
1) Improper or inadequate maintenance by Customer;
2) Customer-supplied software or interfacing;
3) Unauthorized modification or misuse;
4) Operation outside of the environmental specifications for the product; or
5) Improper preparation and maintenance of site.
(b) Duration and Commencement of Warranty Period. The warranty period for each
product is specified in the supplemental statement of warranty and installation
available for the product and deemed incorporated herein. The warranty period
shall begin on the date of delivery or, where the purchase price includes
installation by HP, on the date of installation. If Customer schedules or
delays installation for more than thirty (30) days after delivery, the warranty
period shall begin on the thirty-first (31) day from the date of delivery.
(c) Place of Performance. Within HP's service travel areas as defined by HP,
warranty services and installation services for products installed by HP shall
be performed at Customer's facility at no charge. Outside the said travel areas,
the said warranty and installation services shall be performed at Customer's
facility only upon HP's prior agreement, and Customer shall pay HP's round trip
expense and any required additional expenses for such services. In all other
cases, products shall be returned to a service facility designated by HP. For
products without a defined service travel area, warranty and installation
services shall be at HP's designated facility.
On-site warranty and installation services are provided at the initial
installation point. If products eligible for on-site warranty and installation
services are moved from the initial installation point, the warranty shall
remain in effect only if Customer purchases additional inspection or
installation service at the new site.
(d) Transport Charges, etc. Customer shall prepay shipping charges (and shall
pay all duties and taxes) for products returned to HP for warranty service.
Except for products returned to Customer from another country, HP shall pay for
return of products to Customer.
(e) HP's Liability. HP's liability under this clause shall be in lieu of any
warranty or condition implied by law as to the quality or fitness for any
particular purpose of the products.
(f) Consumer Transactions. The above warranty does not apply to consumer
transactions except insofar as it adds to Customer's rights implied by statue.
10. LIMITATION OF REMEDIES AND LIABILITY.
The remedies provided herein shall be Customer's sole and exclusive remedies,
and Interactive and/or HP shall not otherwise be liable to the Customer for any
direct or indirect damages however based. The foregoing limitation of liability
shall not apply to:
(a) HP's statutory liability for injury or damages caused by defective
products.
(b) Personal injury, death, or loss of or damage to property resulting from
HP's negligence, provided that HP's liability for such loss of or damage to
property shall not exceed whichever is the greater of fifty thousand (50,000)
dollars or the purchase price of the associated product for each event or
series of events arising from the same cause.
(c) Any breach on the part of HP of any undertaking as to title, quiet
possession and freedom from encumbrance implied by law.
11. NUCLEAR AND AVIATION APPLICATIONS.
HP's products are not specifically designed, manufactured or intended for sale
as party, components, or assemblies for the planning, construction maintenance,
operation, or use of any nuclear facility nor for the flight, navigation, or
communication of aircraft or ground support equipment. Except as provided in
condition 10 above, Interactive and/or HP shall not be liable, in whole or in
part, for any claims or damages arising from such use.
If products applied hereunder to Customer are used for these applications,
Customer shall indemnify and hold Interactive and/or HP harmless from any
claims for loss, cost, damage, expense or liability arising out of or in
connection with the use and performance of HP's products in such nuclear and
aviation applications.
Test equipment used in a static application which is not a functional part,
component, or assembly of an aircraft and is not attached to or utilized in the
flight of an aircraft shall not be subject to this clause.
12. GENERAL TERMS AND CONDITIONS.
(a) Notices will be given in writing at the address of each party or to such
other address any party may substitute by notice to the other. Notices are
effective ten (10) days after date of notice.
(b) None of the parties may assign any rights or obligations hereunder without
the prior consent of the others.
(c) HP's failure to exercise any of its rights hereunder will not constitute a
waiver of forfeiture of such rights.
(d) No U.S. Government procurement regulations will be included hereunder and
be binding on either party unless specifically agreed in writing prior to
incorporation herein.
(e) Stereographical, typographical and clerical errors are subject to
correction.
(f) Any disputes arising in connection with this Agreement and any attachments
will be governed by and construed in accordance with the laws of the State of
California. The Courts within the State of California will have jurisdiction.
(g) This Agreement and any attachments will constitute the entire agreement
between the parties relating to transactions hereunder and will supersede any
previous communication, representation or agreement by either party whether
oral or written. Customer's additional or different terms and conditions will
not apply. Customer's purchase or license of products and services hereunder
will constitute acceptance by Customer of this Agreement. No change of any of
the terms and conditions herein will be valid unless in writing signed by an
authorized representative of each party.
13. ACCEPTANCE.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
do each hereby warrant and represent that their respective signatory whose
signature appears in the Principal Agreement has been and is on the date of the
Agreement duly authorized by all necessary and appropriate corporate action to
execute this Agreement.
Page 2/2
50
EXHIBIT B
SCHEDULE B
BUSINESS AND RESOURCE PLANS FOR GERMANY AND HUNGARY
Dimension 1996 1997 1998 1999
--------- ---- ---- ---- ----
GERMANY
Incoming Orders Systems * * * *
Sales Systems * * * *
INFOFLO licences (gross) TDEM * * * *
Unidata licences (gross) TDEM * * * *
INFOFLO licences (gross) (pound sterling)k * * * *
Unidata licences (gross) (pound sterling)k * * * *
INFOFLO fees to (pound sterling)k * * * *
Interactive
UniData fees to (pound sterling)k * * * *
Interactive
Sales staff Heads * * * *
(end of year)
Pre-sales consultants Heads * * * *
HUNGARY
Incoming Orders Systems * * * *
Sales Systems * * * *
INFOFLO licences (gross) TDEM * * * *
Unidata licences (gross) TDEM * * * *
INFOFLO licences (gross) (pound sterling)k * * * *
Unidata licences (gross) (pound sterling)k * * * *
INFOFLO fees to (pound sterling)k * * * *
Interactive
UniData fees to (pound sterling)k * * * *
Interactive
Sales staff Heads * * * *
(end of year)
Pre-sales consultants Heads * * * *
* Confidential Treatment Requested
51
EXHIBIT C
---------
SCHEDULE C
INITIAL TRAINING PACKAGE
------------------------
Interactive will provide the following education and training. The costs are
based on either:
* Daily rate for a consultant of 575
** Per day rate of 1,200 for a bespoke or on-site course for up to 8 people
*** Per delegate rate of 225 per day for courses based on scheduled customer
courses
DURATION PEOPLE COST
System set up and installation* 5 days 4 2,875
Technical education for systems
administrator and programmers
Systems administration
and management*** 5 days 3 3,375
Programmer education & training
SB+ Report Writer*** 2 days 3 1,350
SB+ Developer*** 2 days 3 1,350
Overview for sales, pre-sales,
consultants and project managers
Sales and marketing overview** 2 days 3 2,400
Systems conventions*** 1 day 5 1,125
Product overview** 1 day 5 1,200
Detailed education and training for
consultants and project managers
Implementation approach** 1 day 4 1,200
Detailed module courses*** 27 days 4 24,300
--------- --------
Total for initial training and support
package 46 days 39,175
Interactive and Distributor will jointly agree on the training plan, and decide
by topic on the best location for each element. The training will take place in
Watford, Munich and the U.S.A. The fees for this training are included within
the distributor fee (Section 9.b(1)) at a substantially reduced rate.
Distributor will be responsible for all travel expenses for Distributor or
Interactive personnel in association with this training.
52
EXHIBIT D
SCHEDULE D
INTERACTIVE RATE SCHEDULE
EFFECTIVE JANUARY 1, 1996
CHARGES
Programming/Telephone Support (pound sterling)63.00 per hour
Implementation Services including: (pound sterling)575.00 per day
Project Management
Systems Analysis
Conversion Assistance
Software Upgrades
User Training
Product Education Courses:
-At Interactive's facilities (pound sterling)225.00 per day
(pricing is per student)
-At Customer's facilities (pound sterling)1,115.00 per day
(pricing is per instructor)
Holidays and Non-Business Hours 150% of Rate
Consulting (pound sterling)712.50 per day
Sales Support including: (pound sterling)750.00 per day
Sales Manager
Account Manager
Pre-Sales Consultant
Materials and Expenses Actual Cost
Magnet Tapes (all) (pound sterling)
Travel Time (1/2 Rate)
Notes: 1. All rates are subject to change with 60-day prior written notice.
2. Normal Business Hours are 9:00am to 5:30pm Monday to Friday
excluding Bank and UK National Holidays.
53
EXHIBIT E
SCHEDULE E
MARKETING DELIVERABLES
----------------------
Interactive will provide:
- PowerPoint presentations on Interactive, INFOFLO, Key
differentiators, implementation, Custom order industry perspective,
competitors, etc.
- Demonstration database
- Initial supplies of sales collateral - corporate overview, INFOFLO
overview, INFOFLO product guide, case studies, etc.
- Artwork such as logos or diagrams for use in Distributor's own sales
collateral, provided Interactive has approved of the finished
document
- Sample proposals, sales letters, education needs analysis,
implementation needs analysis, technical needs analysis
- Sample telephone sales script/questionnaire
- Customer reference list, and a mechanism for arranging reference
calls or visits, provided they are approved by the European Sales
Manager
- Sample education prospectus
Interactive and Distributor will jointly develop German versions of the standard
INFOFLO sales collateral. Distributor will translate the text to German, and
then Interactive will facilitate production of the material, and provide it to
Distributor at a reasonable cost.
54
EXHIBIT F
SCHEDULE F
GERMAN PRICE LIST FOR
evosoft SOFTWAREVERTRIEB Gmbh
LICENSE LICENSE LICENSE LICENSE LICENSE LICENSE LICENSE EACH
PRODUCT FEE FEE FEE FEE FEE FEE FEE ADDITIONAL
* * * * * * * *
INFOFLO
Manufacturing * * * * * * * *
Inc: Quotations & Estimating
Service & Repair
Product Configurator * * * * * * * *
UNIDATA RDBMS License * * * * * * * *
SB + DEVELOPER License * * * * * * * *
TOTAL MANUFACTURING LICENSE
INCL. EZK * * * * * * * *
INFOFLO * * * * * * * *
Commercial/Fabric/
Installation & Service
UNIDATA RDBMS License * * * * * * * *
SB + DEVELOPER License * * * * * * * *
TOTAL COMM/FABRIC/
INST & SER LICENSE * * * * * * * *
Other Modules
Purchase Scheduling *
Forecasting *
Sales Scheduling *
BATCH PRODUCTS
*
* *
* *
* *
Electronic Data Interchange * *
Data Collection (Bar Coding) * *
BACS *
SPEX * *
* *
NB: All Prices in DEM
* Confidential Treatment Requested
55
EXHIBIT G
SCHEDULE G
INFOFLO LICENSE FOR INTERNAL USE:
LICENSE MAINT. PA
INFOFLO Commercial/Installation & Service * *
UniData RDBMS * *
SB+ 4GL environment * *
---------------------
* *
Discounts for internal use:
* discount on INFOFLO * *
* discount on UniData * *
* discount on SB+ * *
---------------------
Total discount: * *
---------------------
LICENSE FOR INTERNAL USE * *
*Maintenance is discounted * for INFOFLO, * for UniData products
Implementation budget of 20 days consultancy *
* discount on implementation rate *
--------
IMPLEMENTATION FOR INTERNAL SYSTEM *
* Confidential Treatment Requested