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Exhibit 10.13
OPENSITE BUSINESS PARTNER AGREEMENT
This OpenSite BUSINESS PARTNER AGREEMENT ("Agreement"), dated
____________, 1999, is made and entered into by and between
______________________________("Business Partner"), and OpenSite Technologies,
Inc. ("OpenSite").
WHEREAS, OpenSite owns or possesses the right to market the Software (as
hereinafter defined); and
WHEREAS, both parties desire that OpenSite appoints Business Partner as its
nonexclusive Reseller for the marketing of the Software in the Territory during
the Term (as defined below);
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree
as follows:
SECTION 1
DEFINITIONS
As used in this Agreement, the capitalized terms set forth herein shall
have the following meanings:
1.1 "AFFILIATE." A company's Subsidiaries, any company of which it is a
Subsidiary, and other Subsidiaries of such company.
1.2 "DERIVATIVE WORKS." Works of authorship based on one or more pre-existing
works of OpenSite which are created by OpenSite, Business Partner, or on behalf
of OpenSite, including Documentation, Software, customized software,
Enhancements, and Updates in whatever from the work may be recast, transformed
or adapted, including translations, ports and screen reformatting.
1.3 "DOCUMENTATION." The written, electronic or recorded work generally provided
by OpenSite to licensed End-Users in connection with specific Software that
describes the function and features of said Software.
1.4 "END-USERS." Customers who license the software for internal productive use;
provided, however, that service bureau or data center users or any users that
are licensed by OpenSite to use the Software without any participation of
Business Partner shall not be considered End-Users for purpose of this
Agreement.
1.5 "ENHANCEMENTS." Modifications, additions, or substitutions, other than
Updates, made to the Software that accomplish performance, structural, or
functional improvements. Enhancements do not include major modifications for
which OpenSite customarily charges separately.
1.6 "LICENSE AGREEMENT." OpenSite's standard form of License Agreement
applicable to any End-User's use of the Software hereunder, as amended from time
to time. The current version of the License Agreement is attached hereto as B.
1.7 "SOFTWARE." The software (including Updates and Enhancements) and
Documentation of OpenSite described in Exhibit B attached hereto.
1.8 "TERM." The period during which this Agreement is effective, beginning with
the time this Agreement has been signed by both parties and ending upon
termination as provided in Section 12 hereof.
1.9 "UPDATES." Modifications, updates, or revisions made to the Software that
correct errors or respond to routine maintenance or support requirements.
Updates shall include modifications made to support industry-standard changes in
supported operating systems and input-output devices generally used by licensed
End-Users.
1.10 "TERRITORY." Unless otherwise specified herein, the territory shall be
limited to the United States of America.
SECTION 2
APPOINTMENT OF BUSINESS PARTNER
Subject to the provisions of this Agreement, OpenSite hereby appoints
Business Partner as a nonexclusive reseller of the Software in the Territory
during the Term (as defined below). Acting in such capacity, Business Partner
shall deliver the Software to licensed End-Users, and collect for OpenSite's
account from End-Users all fees and charges due OpenSite hereunder, as provided
in the License Agreements. OpenSite may, at its sole option, appoint other
resellers of the Software in the Territory at any time during the Term and
reserves the right to license the Software directly or indirectly to End-Users
and to third-party original equipment manufacturers, value-added resellers or
distributors for sublicense or distribution in the Territory. Business Partner
hereby accepts such appointment and agrees to pay and perform the obligations
set forth in this Agreement.
SECTION 3
GRANT OF RIGHTS TO BUSINESS PARTNER
3.1 LICENSE. Subject to the limitations set forth in this Agreement, OpenSite
hereby grants to Business Partner a personal, nonexclusive, nontransferable
license, during the Term of this Agreement, to use, demonstrate, market and
distribute the Software, in object code only, to End-Users in the Territory.
3.2 DEMONSTRATION SOFTWARE LICENSE. Following execution of this Agreement by
both parties and payment of the fees for the Starter Package as defined and
described in Exhibit A, OpenSite shall deliver to Business Partner a
demonstration copy of the Software and Documentation listed in Exhibit A
("Initial Delivery"), which OpenSite represents and warrants will constitute the
most current version of the Software. OpenSite grants Business Partner a
personal, nonexclusive, nontransferable license to use the demonstration copy
("DC") solely for internal testing and demonstration at Business Partner's
facility (Designated Location). Business Partner cannot use the DC Software for
internal production and they cannot resell the DC. Each DC may be run on one (1)
CPU, only.
3.3 SUBSEQUENT ORDERS. Business Partner may place orders for the Software by
submitting to OpenSite a written order for the same. End Users shall license the
Software directly from OpenSite. Software ordered through OpenSite shall be
delivered FOB North Carolina or as otherwise determined by OpenSite from time to
time. Business Partner will reimburse OpenSite for all shipping charges,
premiums for freight insurance, inspection fees, duties, imposts, assessments
and other costs incurred by OpenSite to transport the Software to the ultimate
destination.
SECTION 4
INDEPENDENT CONTRACTOR
Business Partner is an independent contractor, not
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an employee, agent or franchisee of OpenSite. Business Partner will not
represent or hold itself out as an employee, agent or franchisee of OpenSite.
Business Partner will not be entitled to and will not attempt to create or
assume any obligation, express or implied, on behalf of OpenSite. This Agreement
will not be interpreted or construed as creating or evidencing any association,
joint venture or partnership among the parties or as imposing any partnership
obligation or liability on any party.
SECTION 5
OWNERSHIP AND RESTRICTIONS
5.1 OWNERSHIP AND AUTHORITY. OpenSite represents and warrants that it now has
and will at all times maintain sufficient right, title, and interest in the
Software to enter into and perform its obligations under this Agreement. Title
to the Software and all derivative works thereof shall be in and remain with
OpenSite.
5.2 RESTRICTIONS ON USE. Paragraphs 3.1 and 3.2 set forth the entirety of
Business Partner's rights to use, market, sublicense, distribute and otherwise
deal with the Software. OpenSite reserves any rights not expressly granted to
Business Partner in this Agreement. Without limiting the foregoing, Business
Partner will not, directly or through others: (a) market, license, distribute,
transfer or otherwise commercially exploit the Software except as expressly
authorized in paragraph 3; (b) copy or repackage the Software; (c) modify the
Software or translate or port the Software into any other computer or human
language; (d) disassemble, reverse engineer or decompile the Software or
otherwise attempt to discover any portion of the source code or trade secrets
related to the Software; or (e) sell, lend, rent, give, assign or otherwise
transfer or dispose of the Software except in accordance with paragraph 3.2 and
other provisions of this Agreement. No service bureau work, time-sharing
arrangement, or other internal productive use by Business Partner is permitted,
except as may be expressly authorized by OpenSite in a separate written
agreement. Business Partner will use its reasonable best efforts to prevent
unauthorized use of the Software by any person or entity directly or indirectly
acquiring the Software by, through or under Business Partner. Business Partner
will notify OpenSite of any such unauthorized use immediately after Business
Partner becomes aware of it.
5.3 PROPRIETARY FEATURES. The Software is a commercially valuable, proprietary
product of OpenSite, the design and development of which reflect the effort of
skilled development experts and the investment of considerable time and money.
OpenSite has indicated to Business Partner that the Software contains
substantial trade secrets of OpenSite, and Business Partner agrees to employ
reasonable security precautions to maintain the confidentiality of such trade
secrets. Subject to the rights and licenses expressly granted by OpenSite
hereunder, OpenSite claims and reserves all rights and benefits afforded under
federal and international copyright law in all programming and documentation
comprising the Software, including all Documentation and Derivative Works of the
foregoing as well as any new development created pursuant to or in connection
with this Agreement, as copyrighted works.
5.4 LEGENDS. Business Partner must reproduce and include in all copies of the
Software prepared by Business Partner (and in all adaptations thereof, if any)
the copyright notice(s) and proprietary legend(s) of OpenSite and OpenSite's
licensors/vendors, if any, as they appear in the Software and on the media
containing the Software supplied to Business Partner.
5.5 TRADEMARKS. OpenSite reserves all of its trademarks used in association with
the Software but hereby grants to Business Partner the nonexclusive right to use
such trademarks during the Term of this Agreement, in accordance with the
guidelines included in the Business Partner manual, solely to identify the
Software in connection with Business Partner's marketing and distribution of the
Software to End-Users in the Territory. The guidelines are subject to change
from time to time.
SECTION 6
MARKETING RELATIONSHIP
6.1 MARKETING EFFORTS AND PLANS. Business Partner shall use best efforts to
market and promote licenses of the Software to End-Users in the Territory. Where
appropriate, Business Partner shall cooperate and coordinate with End Users and
OpenSite in the installation of Software and training of End Users in the use of
the Software. Business Partner shall also serve as the initial point of contact
with End Users for maintenance and support as hereafter defined and investigate
and report to OpenSite all customer complaints related to the Software
distributed by Business Partner.
6.2 BUSINESS PARTNER CONDUCT. Business Partner shall maintain the organization
and resources necessary for performance of this Agreement. It shall conduct its
business so as to maintain and increase the goodwill and reputation of OpenSite
and the Software. In the circumstance where Business Partner is deemed to be
incapable, in the opinion of OpenSite, of supporting this Agreement, OpenSite
will provide Business Partner with a letter stating the areas for improvement
and providing Business Partner with thirty (30) days to resolve OpenSite's
concerns. Business Partner will not delegate performance of any of its
obligations under this Agreement (other than to its own employees).
6.3 REPORTING. Business Partner agrees to furnish the OpenSite account manager
with a monthly report, using a format provided by OpenSite. The report will
include sales forecast, inventory and prospect information and may include any
other information relevant to OpenSite's business. Business Partner shall notify
OpenSite promptly of any erroneous or missing information.
6.4 COMPETITIVE PRODUCTS. So long as this Agreement is in effect, Business
Partner shall not distribute or act as a business partner or representative for
any developer, publisher, or manufacturer of software programs that are
functionally comparable to or intended, by applicable marketing and promotional
programs directed to such products, to compete directly with the Software.
6.5 BROCHURES. Business Partner shall use only promotional material approved by
OpenSite for purposes of promotion of the Software.
6.6 MARKETING SUPPORT. OpenSite will provide marketing support as described in
Exhibit A.
6.7 NO EXCLUSIVE RIGHTS. This Agreement does not grant to either party any
exclusive privileges, rights, or licenses related to any products or services
and, subject to Section 6.4, each party may contract with other manufacturers,
suppliers, or licensors for the development or procurement of, or right to
license, other products and services.
6.8 BUSINESS PARTNER'S RESPONSIBILITY FOR COSTS. Business Partner shall be
responsible for and pay all
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expenses incurred by Business Partner in the performance of its duties under
this Agreement, including dues and fees, attendance at seminars or conventions,
transportation, telephone, entertainment and promotional expenses. For each
Software product purchased hereunder, Business Partner shall pay OpenSite the
price set forth in Exhibit A.
6.9 LIMITS OF AUTHORITY. Business Partner is an independent contractor, not an
employee, agent or franchisee of OpenSite. Business Partner will not represent
or hold itself out as an employee, agent or franchisee of OpenSite. Business
Partner will not be entitled to and will not attempt to create or assume any
obligation, express or implied, on behalf of OpenSite. Business Partner shall
not, without prior written approval from an authorized representative of
OpenSite, take any of the following actions:
a) waive, alter, or change any provision of any License Agreement;
b) modify or extend the amount of or time for the payment of any charge or fee
required under any License Agreement;
c) enter into any contract with End-Users with respect to the Software other
than for maintenance and support;
d) incur any expense or obligation in the name of OpenSite;
e) disseminate any printed material regarding the Software or OpenSite's
business except as provided herein;
f) use OpenSite's name, trade names, trademarks, or logos in connection with its
business other than in the manner expressly authorized in OpenSite's advertising
and promotional guidelines;
g) engage in any activities which are in violation of any applicable federal,
state or local law, statute or regulation; use the facilities and capabilities
of OpenSite or OpenSite's Software or other proprietary material to conduct or
solicit the performance of any illegal activity or other activity which
infringes the rights of OpenSite or any third party.
SECTION 7
SUPPORT
7.1 GENERAL. Maintenance and support for the Software shall be provided to End
Users either wholly by OpenSite or primarily by Business Partner with backup
support from OpenSite. If OpenSite is the exclusive provider of maintenance and
support, it will contract directly with the End User. In such event Business
Partner shall take no part in the delivery of maintenance and support and will
receive no compensation therefor. If Business Partner is the provider of
maintenance and support then Business Partner shall enter into such an agreement
directly with End User and shall be the initial point of contact with the End
User in each case as described below. Business Partner and OpenSite will then
enter into an agreement for backup support in the form of Exhibit C hereto. Each
End User receiving maintenance and support from Business Partner for whom
OpenSite will provide backup support shall be full identified in an attachment
to Exhibit C, signed by OpenSite and Business Partner.
7.2 BUSINESS PARTNER AS POINT-OF-CONTACT FOR END-USERS. When Business Partner
shall be the provider of maintenance and support for End Users, it shall be
responsible for serving as the point-of-contact for all End-Users with respect
to all support requests or error reports. All requests for support from
End-Users shall be directed to Business Partner. Business Partner shall be
responsible to fully handle all level one and level two requests for support.
Level three and level four support shall be provided by OpenSite to Business
Partner if and to the extent specified in an agreement between Business Partner
and OpenSite. When Business Partner is the provider of maintenance and support
to an End User OpenSite shall NOT accept any support requests directly from such
End User.
Levels of support shall be as follows:
LEVEL ONE: Receives all initial contacts from End Users, whether by email or
telephone. Performs all triage to determine severity level of error or if error
is a user error. Support includes remediation of all cosmetic, template,
configuration and user feature/function questions and errors;
LEVEL TWO: Support includes all cases where errors do not materially and
adversely affect the operation of the Software as a whole or its performance,
but which adversely affects one or more secondary functions (e.g., email
problems);
LEVEL THREE: Support includes cases where errors do not completely prevent the
Software from operating, but which materially and adversely affects the
operation of the Software as a whole or a primary function of the Software; and
LEVEL FOUR: Support includes cases where an error completely prevents the
Software from operating.
7.3 TRAINING BY OPENSITE. At no additional charge, Business Partner is entitled
to OpenSite Training as per Exhibit C. The prices for additional training are
also listed in Exhibit C.
7.4 BUSINESS PARTNER PERSONNEL. During the term of this Agreement, Business
Partner shall have at least one full time employee trained in the Software at
all times. This will be a full time employee of Business Partner who has
participated in and completed OpenSite's technical training course and who
maintains a high level of proficiency in the use of the Software. Unless
otherwise agreed and set forth in Exhibit C, such training shall occur at
OpenSite's premises at a mutually agreeable time for a single session. Business
Partner shall be responsible for all living and travel expenses for its
personnel attending such training sessions.
7.5 NOTIFICATION REGARDING MODIFICATIONS. OpenSite shall provide Business
Partner with advance notification of new releases and updates, including Updates
and Enhancements, that affect the use of the Software by End-Users. Such advance
notification shall be given to Business Partner as soon as practicable.
7.6 NO RESPONSIBILITY OF OPENSITE FOR THIRD-PARTY WORK. Regardless of any
commitment made by Business Partner to any End-User, and without regard to any
termination of this Agreement, OpenSite shall not be responsible for maintaining
or supporting system software, application software, or equipment of Business
Partner or any other vendor, even if used in combination with the Software.
SECTION 8
COMPENSATION
8.1 FEES. OpenSite's License Agreement shall provide for licensed End-Users to
pay fees to Business Partner on OpenSite's behalf. OpenSite's fees generally
consist of (1) an initial fee for the End-User's use of the Software(s), and (2)
annual maintenance and support fees in connection with the Software. OpenSite
shall promptly notify Business Partner of any modification of such fees.
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8.2 BILLING. Prior to delivery of the Software to an End-User, Business Partner
shall have collected all fees owed by the End-User for initial license and
maintenance and support fees, if any, and remitted same to OpenSite, less
applicable discounts. Fees for subsequent yearly maintenance and support, if
provided exclusively by OpenSite shall be due and payable by Business Partner to
OpenSite on the date set forth in the applicable maintenance and support
agreement in effect between OpenSite and the End-User. Failure to pay such
amounts when due shall entitle OpenSite to collect a late fee in the amount of
1.5% per month.
8.3 RECEIVABLES AND COLLECTION. Business Partner shall be entitled to deduct
from license fees and maintenance and support fees collected by Business Partner
pursuant to this Agreement, the percentages set forth in Exhibit A as Business
Partner's total commission/compensation.
8.4 SPLITTING COMMISSIONS. In no event will OpenSite be liable for more than one
single commission for each unit of Software licensed by an End-User. The first
business partner to notify OpenSite in writing of a potential End-User shall be
entitled to commission upon such End-User's execution of OpenSite's License
Agreement and maintenance and support agreement, if any. Should more than one
organization and/or individual claim any right to a commission, a single
commission will be paid by OpenSite as determined by OpenSite in its sole
discretion.
8.5 CHANGES. All Software and service fees described in this Agreement, and any
terms and conditions set forth in the exhibits, are subject to change by
OpenSite at any time. Notwithstanding the aforesaid, such changes for fee
increases shall not become effective as to Business Partner with respect to
shipments of Software or the provision of services for at least thirty (30)
calendar days from Business Partner's receipt of written notice. All Software
shipped on or after the date of any price decrease will be shipped and invoiced
at the price in effect at the time of shipment.
SECTION 9
WARRANTY
OpenSite warrants that, upon delivery, the Software will function in all
material respects in accordance with its specifications set forth in the
applicable user documentation for the Software published by OpenSite. OpenSite
does not warrant that the Software is free from all bugs, errors or omissions.
The warranty does not apply to any modification or change not made by OpenSite
or to any noncompliance caused by use or combination of the Software with
products, goods, services or other items not approved by OpenSite, other than
the hardware for which the Software was designed. OpenSite will use reasonable
efforts to correct any Software that fails to comply with the foregoing
warranty, provided that Business Partner gives OpenSite prompt written notice of
such failure and OpenSite is able to reproduce the noncompliance on the hardware
for which the Software is designed. If after the expenditure of such reasonable
efforts OpenSite is unable to correct such Software, OpenSite may, at its
option, refund all or a reasonable portion of the fees received under this
Agreement in full satisfaction of all claims of Business Partner relating to
such noncompliance. OpenSite's warranties under this Agreement are solely for
the benefit of Business Partner and may be asserted only by Business Partner and
not by any customer of Business Partner. THE WARRANTIES OF OPENSITE AND THE
REMEDIES FOR BUSINESS PARTNER SET FORTH HEREIN ARE EXCLUSIVE AND OPENSITE
DISCLAIMS ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES AND ALL OTHER
RIGHTS, REMEDIES AND CLAIMS OF BUSINESS PARTNER, EXPRESS OR IMPLIED, ARISING BY
LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT, DEFICIENCY OR NONCONFORMITY IN ANY
SOFTWARE OR OTHER ITEM FURNISHED BY OR ON BEHALF OF OPENSITE UNDER THIS
AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
SECTION 10
TAXES
Business Partner shall collect, report and pay any applicable sales and
use taxes, including any privilege or excise taxes in the nature of sales or use
taxes to the relevant taxing authority on behalf of OpenSite, and indemnify
OpenSite for any liability or costs for any failure to so collect, report, or
pay.
SECTION 11
RECORDKEEPING
Business Partner agrees to maintain complete and adequate records relating
to fees, ▇▇▇▇▇▇▇▇, and collections applicable to the Software marketed pursuant
to this Agreement. Such records shall include shipping and any service records.
Business Partner shall prepare and submit to OpenSite the reports as may be
required from time to time by OpenSite containing all information reasonably
sought by OpenSite with respect to ▇▇▇▇▇▇▇▇ and payments.
SECTION 12
TERMINATION AND DEFAULT
12.1 VOLUNTARY TERMINATION. Either OpenSite or Business
Partner may terminate this Agreement at any time without cause by giving the
other party thirty (30) days prior written notice. Business Partner further
agrees to deliver to OpenSite within ten (10) days after the termination of this
Agreement, all marketing aids in its possession, including copies of the
Software, Documentation and related marketing or technical literature.
12.2 TERMINATION FOR CAUSE. OpenSite may terminate this Agreement immediately,
without notice to Business Partner, for just cause. A termination shall be
deemed "for cause" if Business Partner:
a) Breaches any provision of this Agreement;
b) Violates any law or regulation;
c) Commits, pleads guilty or nolo contendere to, or is convicted or, an act or
offence involving moral turpitude;
d) Commits any willful or dishonest act that could injure OpenSite; or
e) Fails to meet minimum performance standards established by OpenSite in its
sole discretion from time to time.
A termination under this Section shall not constitute an election by OpenSite to
forego any claim it may have against Business Partner. The failure of OpenSite
to exercise any of its rights under this Section shall not preclude it from
invoking these rights in the future based on the same or other circumstances.
OPENSITE WILL NOT BE LIABLE TO BUSINESS PARTNER FOR DAMAGES OF ANY KIND,
INCLUDING, BUT NOT LIMITED TO, INCIDENTAL OR
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CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION OF THIS AGREEMENT. BUSINESS
PARTNER WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE COMPENSATION OR REPARATIONS UPON
TERMINATION OF THIS AGREEMENT.
12.3 CONSEQUENCE OF TERMINATION. Notwithstanding the termination of this
Agreement, all fees payable to OpenSite hereunder shall continue to be paid and
Business Partner may retain the part thereof to which it is entitled hereunder
to the extent that Business Partner continues to satisfy all duties relating to
the then licensed End-Users under this Agreement and to collect all fees and
charges with respect thereto.
12.4 NON-DISPARAGEMENT. During the term of this Agreement and for 3 years after
this Agreement is terminated, Business Partner will not disparage OpenSite or
its products or services, including the Software, to any third party, including
End-Users, and will not delay, hinder or deny the provision of documentation and
agreements required by OpenSite to be executed by any third party, including
End-Users, and will not interfere with the contractual or business relationships
of OpenSite with any third party, including End-Users and will not engage in any
activities which might injure the reputation or goodwill of OpenSite and its
products or services.
12.5 REPLACEMENT. During the term of this Agreement and for 3 years after this
Agreement is terminated, if Business Partner induces, directly or indirectly, or
encourages anyone else to induce, directly or indirectly, any End-User with
respect to whom Business Partner has received Commissions to terminate or
replace the License Agreement or its use of the Licensed Products, in favor of
any competing, non-OpenSite-sponsored software program, Business Partner shall
repay one hundred percent (100%) of all Commissions it received during the prior
3 years with respect to the License Agreements that are terminated or replaced
as a result of Business Partner's actions.
SECTION 13
NON-SOLICITATION
Business Partner agrees that OpenSite's employees possess technical and
other abilities that are in great demand and further agrees that OpenSite has
incurred substantial expense in recruiting and training such employees and would
incur even greater expense if required to replace any such employee. Therefore,
Business Partner agrees not to recruit, employ a present employee of OpenSite,
or in any way induce an employee to leave the employ of OpenSite, either
directly or indirectly, during the term of this Agreement and for one year
following termination thereof.
SECTION 14
INDEMNIFICATION
14.1 INFRINGEMENT. OpenSite will defend or settle, at its own expense, any claim
or suit against Business Partner alleging that any Software furnished under this
Agreement, when used in accordance with the License Agreement, infringes any
U.S. patent, trademark, copyright, or trade secret. OpenSite will also pay all
damages and costs that by final judgment may be assessed against Business
Partner as a result of such infringement.
14.2 CONDITIONS AND EXCEPTIONS. OpenSite's obligations as set forth in this
Section 14 are expressly conditioned upon the following: (1) OpenSite shall be
notified promptly in writing by Business Partner of any claim or suit; (2)
OpenSite shall have sole control of the defense or settlement of any claim or
suit; (3) Business Partner shall cooperate with OpenSite in a reasonable way to
facilitate the settlement or defense of any claim or suit; and (4) the claim or
suit does not arise from Business Partner or End-User modifications to the
Software, or from combinations of the Software with products provided by
Business Partner or others.
14.3 REMEDIES. If any Software becomes, or in OpenSite's opinion is likely to
become, the subject of a claim of infringement, OpenSite will, at its option:
(1) procure for Business Partner and End-User the right to continue using the
Software; (2) replace the Software with a non-infringing product substantially
complying with the Software's specifications; (3) modify the Software so it
becomes non-infringing and performs in a substantially similar manner to the
original Software. If the OpenSite cannot provide any of the preceding options,
OpenSite will repay to Business Partner and End Users all fees paid to OpenSite
over the preceding twelve months.
14.4 INDEMNIFICATION BY BUSINESS PARTNER. Business Partner shall indemnify
Licensor fully for any cost, liability, or harm suffered by OpenSite as a direct
or indirect result of Business Partner's misrepresentation, fraud, or negligence
with respect to any End-User or License Agreement.
14.5 EXCLUSIVE STATEMENT. THIS SECTION 14 STATES THE ENTIRE LIABILITY OF
OPENSITE FOR INFRINGEMENT BY THE SOFTWARE OR ANY OTHER PRODUCT OR SERVICE
PROVIDED BY OPENSITE.
SECTION 15
LIMITATION OF LIABILITY
Except for the claims described in Section 14, neither party hereto
(including its Affiliates for such purpose) shall in any event be liable to the
other for any damages exceeding the aggregate amount of fees paid by Business
Partner during the twelve (12) months preceding the claim, and in no event shall
a party hereto (including its Affiliates for such purpose) be liable to the
other or to any other company or entity for any incidental, consequential,
special, or any other indirect loss or damage arising out of this Agreement or
any obligation resulting therefrom or the use or performance of any products or
services provided hereunder, whether in an action for or arising out of breach
of contract, tort, or any other cause of action.
SECTION 16
GENERAL
16.1 BINDING NATURE AND ASSIGNMENT. This Agreement shall bind the parties and
their successors and permitted assigns. Neither party may assign this Agreement
without the prior written consent of the other except that with respect to
OpenSite the term "assignment" shall not include any transfer by merger,
acquisition, stock transfer or other consolidation of OpenSite with another
entity. Any other assignment attempted without the written consent of the other
party shall be void.
16.2 NOTICES. Any notice, consent or other communication in connection with this
Agreement shall be in writing and may be delivered in person, by mail or by
facsimile copy. If hand delivered, the notice shall be effective upon delivery.
If by facsimile copy, the notice shall be effective when sent. If served by
mail, the notice shall be effective three (3)
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business days after being deposited with the United States Postal Service by
certified mail, return receipt requested, addressed appropriately to the
intended recipient, as follows:
If to OpenSite: ATTN: OpenSite Technologies, Inc.
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If to Business Partner: ATTN:
16.3 HEADINGS. The articles and sections headings and the table of contents are
for reference and convenience only and shall not be considered in the
interpretation of this Agreement.
16.4 APPROVALS AND SIMILAR ACTIONS. Where agreement, approval, acceptance,
consent or similar action by either party is required by any provision of this
Agreement, such action shall not be unreasonably delayed or withheld, unless
specifically permitted by this Agreement.
16.5 FORCE MAJEURE. Neither party shall be liable to the other by reason of any
failure of performance hereunder (except failure to pay) if such failure arises
out of causes beyond such party's reasonable control, despite the reasonable
efforts and without the fault or negligence of such party. Any party
experiencing such an event shall give as prompt notice as possible under the
circumstances.
16.6 SEVERABILITY. If any provision of this Agreement is held to be
unenforceable, then both parties shall be relieved of all obligations arising
under such provision, but only to the extent that such provision is
unenforceable, and this Agreement shall be deemed amended by modifying such
provision to the extent necessary to make it enforceable while preserving its
intent or, if that is not possible, by substituting another provision that is
enforceable and achieves the same objective and economic result. IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT EACH PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A
LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, INDEMNIFOPENSITEION OR
EXCLUSION OF DAMAGES OR OTHER REMEDIES IS INTENDED TO BE ENFORCED AS SUCH.
FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY
UNDER THIS AGREEMENT IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL
LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES OR OTHER REMEDIES SHALL
REMAIN IN EFFECT.
16.7 WAIVER. No delay or omission by either party to exercise any right or power
it has under this Agreement shall impair or be construed as a waiver of such
right or power. A waiver by either party of any covenant or breach shall not be
construed to be a waiver of any succeeding breach or of any other covenant. All
waivers must be in writing and signed by the party waiving its rights.
16.8 ATTORNEYS' FEES. If any legal action or other proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach, default
or misrepresentation in connection with any of the provisions of this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees and
other costs incurred in that action or proceeding, in addition to any other
relief to which it may be entitled.
16.9 NO THIRD PARTY BENEFICIARIES. The parties agree that this Agreement is for
the benefit of the parties hereto and is not intended to confer any legal rights
or benefits on any third party and that there are no third party beneficiaries
to this Agreement or any part or specific provision of this Agreement.
16.10 ENTIRE AGREEMENT. This Agreement, including all of its attachments, each
of which is incorporated into this Agreement, is the entire agreement between
the parties with respect to its subject matter, and there are no other
representations, understanding or agreements between the parties relative to
such subject matter. No amendment to, or change, waiver or discharge of any
provision of this Agreement shall be valid unless in writing and signed by any
authorized representative of the party against which such amendment, change,
waiver or discharge is sought to be enforced.
16.11 PUBLICITY. OpenSite may reference Business Partner and this Agreement in
its advertising, sales promotions, trade shows, or other marketing material.
16.12 COMPLIANCE WITH LAWS - APPROVALS. In performing this Agreement, Business
Partner will comply with all applicable laws, regulations and other
requirements, now or hereafter in effect, of governmental authorities having
jurisdiction, including, but not limited to, the U.S. Export Administration Act,
regulations of the U.S. Department of Commerce and other export controls of the
U.S., as they now are and as they may be amended. Business Partner will obtain
at its expense all licenses, permits and other governmental approvals; will
provide all notices; and will pay all duties, taxes and other charges required
for the license, export, re-export and import of the Software distributed by
Business Partner.
16.13 NON-DISCLOSURE. Business Partner hereby agrees that it will not disclose
the terms of this Agreement to any third party without the express written
consent of OpenSite. The Software and any information received by Business
Partner in performance of this Agreement relating to the business affairs,
customers, markets, finances, methods, products, technology, trade secrets or
proprietary rights of OpenSite will be treated as confidential and proprietary
information of OpenSite.
16.14 GOVERNING LAW. [WHERE TERRITORY IS UNITED STATES ONLY] As an incentive to
alternative dispute resolution the parties have agreed concerning disputes
arising hereunder: (1) OpenSite may only commence legal proceedings against
Business Partner in a state or federal court sitting in (insert Business
Partner's county here)_County_(insert Business Partner's state here), in which
event, this Agreement will be construed under the internal laws of the State of
(insert Business Partner's state here) and (2) Business Partner may only
commence legal proceedings against OpenSite in state or federal court sitting in
North Carolina, in which event, this Agreement will be construed under the
internal laws of the State of North Carolina; provided that once litigation is
initiated by one of the parties, the parties, the other may assert counterclaims
in those proceedings.
[WHERE TERRITORY IS NOT U.S. ONLY OR IF TERRITORY IS WHOLLY OUTSIDE THE
U.S.] This Agreement will be interpreted, construed and enforced in all respects
in accordance with the local laws of the State of North Carolina, U.S.A. without
reference to its choice of law principles. The parties waive application of the
1980 U.N. Convention on Contracts for the International Sale of Goods to this
Agreement and the transactions contemplated by this
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Agreement. Business Partner will not commence or prosecute any suit, proceeding
or claim to enforce the provisions of this Agreement, or otherwise arising under
or by reason of this Agreement, other than in the courts of the State of North
Carolina or a United States District in North Carolina. Business Partner hereby
irrevocably consents to the jurisdiction and venue of the above-identified
courts.
16.16 SURVIVAL OF PROVISIONS. Provisions 4, 5, 6.7, 6.9, 7.6, 10, 12.3, 12.4,
12.5, 13, 15, and 16 and all accrued and unpaid obligations arising hereunder
shall survive the termination hereof.
IN WITNESS WHEREOF, OpenSite and Business Partner have each caused this
Agreement to be signed and delivered by its duly authorized representative,
effective as of the date first stated above.
OpenSite Technologies, Inc.
By:______________________________
Printed Name:____________________
Title:___________________________
Date: ___________________________
Business Partner:________________
By:______________________________
Printed Name:____________________
Title:___________________________
Date:____________________________
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