▇▇▇▇▇▇ SOFTWARE
PRODUCT LICENSE AGREEMENT
This Product License Agreement entered into between ▇▇▇▇▇▇ Associates, Inc.,
dba ▇▇▇▇▇▇ Software ("▇▇▇▇▇▇"), a Minnesota corporation with its principal
offices located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
and Client, whose name, principal business address, and jurisdiction of
incorporation are set forth below, (collectively "the Parties"), determines
the rights and obligations of ▇▇▇▇▇▇ and Client with respect to the subject
matter of this Agreement.
Client Name: 2 THE ▇▇▇▇.▇▇▇, INC
Address: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇: IRVINE
State/Zip or Province/Postal Code: ▇▇, ▇▇▇▇▇
Jurisdiction of Incorporation: LOS ANGELES
1.0 License and Payment.
1.1 ▇▇▇▇▇▇ grants to Client a perpetual, non-exclusive, and non-transferable
License to Use the Products only with the Platform Technology, Number of
Concurrent Users, Number of Seats, Number of Named Users, Number of Servers,
and Number of Sites, as designated in the Exhibits, subject to the terms and
conditions of this Agreement.
1.2 Client shall pay ▇▇▇▇▇▇ the License Fees, and any applicable Sales Tax on
License Fees, as set forth in the Exhibits attached hereto. In addition to the
Sales Tax on License Fees, Client shall pay or reimburse ▇▇▇▇▇▇ for any Taxes.
All License Fees are exclusive of Taxes. If applicable laws require the
withholding of Taxes under this Agreement, Client shall notify ▇▇▇▇▇▇, make the
applicable withholding, and remit the required Tax to the proper governmental
authority.
2.0 Delivery and Installation.
2.1 Promptly after receipt of down payment, ▇▇▇▇▇▇ shall deliver the Products
to Client, including one copy of the Software and one copy of the Documentation
on appropriate media.
2.2 Client shall, at its expense, be responsible for installation of the
Software, User training, data conversion, and other services necessary to
installing and using the Products.
3.0 Definitions.
3.1 "Agreement" means this Agreement, Exhibits and any addenda signed by
the Parties.
3.2 "Documentation" means all documentation delivered by ▇▇▇▇▇▇ with the
Software, whether in machine-readable or printed form, including any updates,
revisions, new versions, and supplements to such documentation.
3.3 "Effective Date" means the date when authorized representatives of both
▇▇▇▇▇▇ and Client have signed this Agreement as indicated at the end of this
Agreement in the space marked "Date" below ▇▇▇▇▇▇'▇ signature to this
Agreement.
3.4 "Initial Support Period" means six (6) months after initial delivery of
the Products.
3.5 "Intellectual Property Rights" means all copyrights, confidentiality
rights, trade secret rights, trademark rights, patent rights and other
intellectual property rights.
3.6 "License" means the license referred to in Section 1.1.
3.7 "License Fee" means the license fee payable for a Product as set forth
in the Exhibits.
3.8 "Media Warranty" means the warranty referred to in Section 4.6.
3.9 "Modifications or Enhancements" means any modifications, enhancements
or derivative works to the Products which contain or use any object code or
source code developed by ▇▇▇▇▇▇ or its Third Parties.
3.10 "Number of Concurrent Users" means the maximum number of Client's
employees or consultants that constitute the number of peak simultaneous
Users running any on-line program within an application license grouping
(if licensed as Standard Products) or within a process application suite
(if licensed as a Process Suite) as set forth in the Exhibits.
3.11 "Number of Named Users" means the maximum number of Client's employees
or consultants who are designated by Client as the only authorized Users of
Products licensed in such manner as set forth in the Exhibits.
3.12 "Number of Seats" means the maximum number of Client's workstations
upon which the licensed Products may be installed as set
forth in the Exhibits.
3.13 "Number of Servers" means the maximum number of CPUs using the Platform
Technology on which Client is authorized to install the Software as specified
for each Product licensed as set forth in the Exhibits. A CPU shall be
considered a server when the server portion of the Product resides on that CPU.
Location, server description, server serial number, operating system and
release level , media required, and database and release level upon which
the Software is to be installed, are as set forth in the Exhibits or in an
addendum to this Agreement.
3.14 "Number of Sites" means the maximum number of street addresses,
regardless of number of buildings, at which the server portion of the Products
are installed. The site addresses must be set forth in the Exhibits or in an
addendum to this Agreement.
3.15 "Patent or Copyright" means a patent or copyright granted by the
government of the country in which the server portion of the Products is
first installed.
3.16 "Platform Technology" means the current and future release levels of the
combined hardware operating system and database system designated in the
Exhibits and certified by ▇▇▇▇▇▇ for Use with the Software. Unless otherwise
agreed upon in this Agreement, ▇▇▇▇▇▇ shall not be obligated to provide Support
for any portion of the Platform Technology.
3.17 "Products" means the products designated on the Exhibits to this
Agreement and owned either by ▇▇▇▇▇▇ or its Third Parties, which includes the
Software installed on the Platform Technology, Documentation, and media.
3.18 "Product Warranty" means the warranty referred to in Section 4.7.
3.19 "Software" means, depending on the applicable Support Category designated
in the Exhibits, the software portion of the Product installed on the Platform
Technology in object code or source code format, any updates, revisions,
new versions, supplements, and all permitted copies of the foregoing supplied
by ▇▇▇▇▇▇ to Client, whether in machine readable or printed form.
3.20 "Support" means the assistance provided by ▇▇▇▇▇▇, directly or
indirectly, to Client as set forth in Section 4.0 of this Agreement.
3.21 "Taxes" means any sales, use, excise, value-added, withholding taxes
or other taxes based upon this Agreement, including taxes, interest and
penalties that are levied or assessed by a governmental authority, resulting
from this Agreement, excluding taxes based on ▇▇▇▇▇▇'▇ net income.
3.22 "Third Party" means a business entity that has authorized ▇▇▇▇▇▇ to
distribute that entity's Software and Documentation to Client by sublicense
between ▇▇▇▇▇▇ and Client.
3.23 "Use" means writing the Software into and reading the Software out of
memory of a computing device or the execution of the Software, in whole or in
part, by a computing device, and use of the Documentation, for the purpose of
performing the internal business of Client or its wholly-owned subsidiaries.
Use does not include using the Software for the business needs of a person or
entity other than Client, such as providing outsourcing, service bureau,
on-line services or training to third parties.
3.24 "User" means those employees and consultants of Client who are authorized
by the terms of this Agreement to Use the Products.
3.25 The singular and plural shall each include the other, and this Agreement
shall be read accordingly when required by the facts.
4.0 Support.
4.1 During the Initial Support Period and any extended period of Support under
Section 4.4, ▇▇▇▇▇▇ shall use its reasonable efforts to correct any error,
malfunction or defect in the operation of the Software to enable the Software
to materially or substantially perform in accordance with the Documentation in
effect at the time the Support is provided. Client shall be responsible for
the installation of Product defect repairs, and enhancements to, or subsequent
releases of, the Products. Client shall report to ▇▇▇▇▇▇ any errors,
malfunctions, or defects that cause the Product to fail to perform any material
function set forth in the then current Documentation. ▇▇▇▇▇▇ shall only be
obligated to provide Support if Client has paid the applicable Support fees and
provides ▇▇▇▇▇▇ with all information, documentation, technical assistance
and access to the computing device on which the Product is installed and any
other equipment and personnel necessary to assist ▇▇▇▇▇▇. ▇▇▇▇▇▇ shall not
be obligated to provide Support if the Product is not used in accordance
with the then current Documentation or if any error, malfunction, or defect
reported by Client is found by ▇▇▇▇▇▇ to be due to a cause other than
the Product as delivered by ▇▇▇▇▇▇. Client shall pay ▇▇▇▇▇▇, at
▇▇▇▇▇▇'▇ then current hourly rates, for ▇▇▇▇▇▇'▇ services in responding
to a Client report of an error, malfunction, or defect, if (a) such
error, malfunction, or defect does not exist, (b) Client
does not assist ▇▇▇▇▇▇ as required, (c) the Product is not used in accordance
with the Documentation, or (d) the error, malfunction, or defect is not caused
by the Product. If any such error, malfunction, or defect may reasonably be
corrected by ▇▇▇▇▇▇, ▇▇▇▇▇▇ may correct it and Client shall reimburse ▇▇▇▇▇▇
for such correction at ▇▇▇▇▇▇'▇ then current hourly rates.
4.2 Support further includes the items set forth in the following Support
Categories for each Product as designated in the Exhibits to this Agreement:
(i) Support Category A entitles Client to receive for the Products the current
release of the source code and object code, Product defect repairs,
enhancements, and new releases, and any Documentation to enable Client to
install and use such Product defect repairs, enhancements and new releases,
as they become generally available from ▇▇▇▇▇▇ and the following ▇▇▇▇▇▇
Helpline Services: (a) ▇▇▇▇▇▇'▇ standard telephone support, which includes
general technical information and assistance with problem determination,
isolation, verification, and resolution during the hours of 7 AM to 7 PM CST,
excluding weekends and holidays, and (b) ▇▇▇▇▇▇'▇ limited telephone support
which includes, in a production environment, mission critical and systems-down
application and technical support during the hours of 7 PM to 7 AM CST Monday
through Friday, 24 hours per day on Saturday and Sunday, and 8 AM to 5 PM CST
on United States Holidays excluding December 25.
(ii) Support Category B entitles Client to the same level of Support as
Support Category A, except that Client shall not receive source code.
(iii) Support Category C entitles Client to the same level of Support as
Support Category B, except that if Client terminates Support of a Support
Category C Product, Support for all other Products, regardless of the Support
Category is automatically terminated.
(iv) Support Category D, entitles Client to the same level of Support as
Support Category A, except that if Client terminates Support of a Support
Category D Product, Support for all other Products, regardless of the Support
Category is automatically terminated.
(v) Support Category E entitles Client to delivery of the object code for the
current release of the Product, but Client shall not receive any Support for
that Product during or after the Initial Support Period.
(vi) Support Category F entitles Client to delivery of the object code for
the current release of a Third Party Product, but no Support from ▇▇▇▇▇▇ for
that Product. Client may contract with the Third Party to receive Support
directly from the Third Party.
(vii) Support Category F-1 entitles Client to delivery of the source code for
the current release of the Product, but Client shall not receive any Support
from ▇▇▇▇▇▇ for that Product during or after the Initial Support Period.
Client may contract with a Third Party to receive Support directly from the
Third Party.
4.3 Only persons trained on the installation and operation of the Products
(as indicated on the Helpline access list provided from time to time by Client
to ▇▇▇▇▇▇) may have access to the ▇▇▇▇▇▇ Helpline for problem resolution.
4.4 The License Fee paid for any Product, exclusive of Products licensed
under Support Category E, includes Support for the Initial Support Period.
Client may extend Support beyond the Initial Support Period by paying ▇▇▇▇▇▇'▇
then current Support fee within sixty (60) days before the end of the Initial
Support Period and thereafter by paying ▇▇▇▇▇▇'▇ then current Support fee
within sixty (60) days before the end of any extended period of Support.
Support is extended for twelve (12) month periods and provided only as
specified by ▇▇▇▇▇▇'▇ then currently available Support offerings. Support
shall automatically terminate at the end of the applicable Support period if
payment is not timely made. ▇▇▇▇▇▇ may cease providing Support or change the
terms of Support at any time upon completion of the initial or any extended
period of Support. The Support fee base for the Products (excluding Third
Party Products), for any extended period of Support, is calculated at sixteen
16% of the list price of the Products at the Effective Date plus an increase
amount not to exceed twelve (12) percent of the previous Support period's
Support fee. Such increase restriction on Support fees shall be in effect for
a period of four (4) years from the initial delivery of the Products. The
increase restriction on Support fees in this Section 4.4 shall not apply to
(i) additions to the Number of Users, Seats, Servers, Sites or Products since
the beginning of the most recent Support period; or (ii) Third Party-owned
Products sublicensed through ▇▇▇▇▇▇. The Support fee base for Third
Party-owned Products under the Agreement shall be calculated either at a flat
fee or at sixteen (16) percent of the then current list price, depending on the
respective Third Party-owned Product. Client shall reimburse ▇▇▇▇▇▇ for all
reasonable out-of-pocket and travel expenses incurred by ▇▇▇▇▇▇ at Client's
request.
4.5 If Client does not pay annual Support fees for the Products under Section
4.4 above, Support for such Products shall terminate. Reinstatement of annual
Support shall be at ▇▇▇▇▇▇'▇ discretion and shall require the following:
(i)If fewer than twelve (12) months have expired since annual Support has been
terminated, Client shall be required to pay a reinstatement fee equal to two (2)
percent of the then current list price for the Products for which annual
Support has been terminated for each month Client has not been covered under
annual Support, plus the annual Support fee for the next twelve (12) months.
The annual Support fee shall be based on the then current Support fee rate.
(ii)If twelve (12) months or more have expired since annual Support has
been terminated, then Client shall be required to pay a reinstatement fee for
the Products for which annual Support has been terminated equal to the then
current list price for the Products.
The Parties agree that the above reinstatement fees are liquidated damages and
fair and equitable compensation for the value of reinstated Support, and are
not penalties for termination of Support.
4.6 ▇▇▇▇▇▇ warrants that at the time of delivery of the Products, the media
containing the Products shall be free of material defects. The Client's sole
and exclusive remedy for breach of the Media Warranty is replacement of the
defective media if any such defect is found within six (6) months after
delivery of the defective media.
4.7 ▇▇▇▇▇▇ warrants that during the Initial Support Period and any extended
period of Support the Products shall materially or
substantially perform in accordance with the Documentation in effect at
the time the Support is provided. No Product Warranty is provided for
Products licensed under Support Category E. The Client's exclusive
remedies for breach of the Product Warranty are (a) the Client may request
Support from ▇▇▇▇▇▇ to enable the Products to comply with the Product Warranty,
and (b) if the Support requested by the Client does not enable the Products
to comply with the Product Warranty within a reasonable period of time, Client
may seek direct damages for the affected Products subject to the limitations
in Section 14.0. ▇▇▇▇▇▇ shall not be liable to remedy any claimed breach of
the Product Warranty due to the acts or omissions of the Client or any third
party.
4.8 ▇▇▇▇▇▇ warrants that during the Initial Support Period and any extended
period of Support the Products shall be Year 2000 Compliant. "Year 2000
Compliant" means (to the extent that other information technology, used in
combination with the Products, properly exchanges date/time data with
the Products): (i) the Products, as delivered by ▇▇▇▇▇▇, shall accurately
process date/time data (including, without limitation, calculating, comparing
and sequencing) from, into and between the twentieth and twenty-first
centuries, and the years 1999 and 2000 and leap year calculations, in
accordance with the Documentation relating to those Products and in effect at
the time the Support is provided; and (ii) the Products, as delivered by
▇▇▇▇▇▇, will accurately process date/time data (including, without limitation,
calculating, comparing and sequencing) on or after January 1, 2000 in the same
manner, and with the same functionality as the same release level of the
Products processes date/time data (including, without limitation, calculating,
comparing and sequencing) on or before December 31, 1999. During the Initial
Support Period or any extended period of Support, ▇▇▇▇▇▇ shall not modify the
Documentation or the Products in any manner which would cause the Products to
not be Year 2000 Compliant.
4.9 THE EXPRESS LIMITED WARRANTIES IN THIS SECTION 4.0 ARE IN LIEU OF ALL
OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, CONTRACTUAL OR STATUTORY,
INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANY OTHER PROVISION IN
THIS AGREEMENT, ▇▇▇▇▇▇ DOES NOT WARRANT THAT THE USE OF THE PRODUCTS SHALL BE
UNINTERRUPTED OR ERROR FREE OR THAT ALL DEFICIENCIES OR ERRORS ARE CAPABLE OF
BEING CORRECTED.
5.0 Intellectual Property Rights.
5.1 Client acknowledges and agrees that the Products, the ideas, methods of
operation, processes, know-how, aesthetic aspects, sub-systems and modules
included in the Products, the graphical user interfaces for the Products, and
the look and feel of the Products are proprietary materials which contain
valuable trade secrets and that all Intellectual Property Rights to the
Products are owned exclusively by ▇▇▇▇▇▇ and its respective Third Parties,
subject to the License.
5.2 Client acknowledges and agrees that ▇▇▇▇▇▇ and its respective Third
Parties shall retain title to all Intellectual Property Rights related to the
Products, copies of the Products, and Modifications or Enhancements, subject to
the License. If Client makes any Modifications or Enhancements, Client shall
assign to ▇▇▇▇▇▇ and its respective Third Parties all Intellectual Property
Rights to the Modifications or Enhancements. Modifications or Enhancements may
be used in conjunction with the Products only in compliance with this
Agreement. Client may develop and own software which interfaces with the
Products but does not contain or use any object code or source code developed
by ▇▇▇▇▇▇ or its Third Parties.
5.3 Client shall take reasonable precautions (including the precautions used
for Client's own confidential information) to prevent the unauthorized use or
disclosure of the Products, any source code provided to Client under this
Agreement, or the results of any performance or benchmark tests of the
Software. Client shall not allow the Products or any such test results to be
made available to any third party who is not a User, unless ▇▇▇▇▇▇ approves
such in writing and the third party enters into a non-disclosure and non-use
agreement with Client on terms acceptable to ▇▇▇▇▇▇ and its Third Parties.
The Client shall not disassemble, decompile, decode or reverse engineer the
Software, except as expressly permitted by applicable law.
5.4 Client shall keep the Products free and clear of all liens and security
interests and may not sublicense the Products.
5.5 ▇▇▇▇▇▇ shall have the right to inspect, with reasonable notice, during
normal business hours, any location where the Products are being used and to
run the Software for the purpose of auditing its use.
6.0 Products Owned by ▇▇▇▇▇▇ Third Parties.
The portions of the Products that are owned by ▇▇▇▇▇▇'▇ Third Parties are
sublicensed by ▇▇▇▇▇▇ to the Client under this Agreement and are restricted to
Use in conjunction with the Products. If the applicable agreement between
▇▇▇▇▇▇ and its respective Third Party is terminated for any reason, the Third
Party shall continue to be considered a third party beneficiary to this
Agreement and may enforce its rights under this Agreement as the licensor of
the Third Party-owned Products to Client.
7.0 Number of Concurrent Users, Number of Seats and Number of Named Users.
The number of Users authorized to Use any Product with the Platform Technology
shall not exceed the Number of Concurrent Users, Number of Seats or Number of
Named Users specified for the Products on the Exhibits. Client shall take
reasonable precautions to ensure that the Number of Concurrent Users, Number of
Seats or Number of Named Users are not exceeded, including periodic audits of
Use of the Products. Client may request, in writing to ▇▇▇▇▇▇, that the Number
of Concurrent Users, Number of Seats and/or Number of Named Users be increased.
Upon payment of the then current ▇▇▇▇▇▇ pricing for the new level of Users
and/or seats, signing by Client and ▇▇▇▇▇▇ of an addendum to this Agreement
indicating the new Number of Users and/or Number of Seats and the new payment
level, and ▇▇▇▇▇▇'▇ receipt of such payment, the additional Users and/or Seats
shall be authorized. If the Exhibits designate the Number of
Concurrent Users, Number of Seats, or Number of Named Users as "Unlimited,"
"UNL" or similar designation, such designation is restricted to the Platform
Technology designated in the Exhibits.
8.0 Number of Servers and Number of Sites.
The number of servers or sites upon or at which the Product is installed shall
not exceed the Number of Servers or Number of Sites specified for the Products
on the Exhibits. Client shall take reasonable precautions to ensure that the
Number of Servers or Number of Sites is not exceeded, including periodic audits
of Use of the Products. Client may request, in writing to ▇▇▇▇▇▇, that the
Number of Servers or Number of Sites be increased. With respect to
▇▇▇▇▇▇-owned Products, upon signing by Client and ▇▇▇▇▇▇ of an addendum to this
Agreement indicating the new level of servers (and the number of Users per
server) or sites and the location and identification of such servers or sites,
the additional servers or sites shall be authorized. With respect to Third
Party-owned Products, upon payment of the then current ▇▇▇▇▇▇ pricing for the
additional servers or sites, signing by Client and ▇▇▇▇▇▇ of an addendum to
this Agreement indicating the new level of servers (and the number of Users per
server) or sites, and the new payment level, and ▇▇▇▇▇▇'▇ receipt of such
payment, the additional servers or sites shall be authorized. When requesting
an increase in the Number of Servers or Number of Sites, Client shall provide
▇▇▇▇▇▇ the location address, Number of Concurrent Users, server description,
operating system and release level , server serial number, media required, and
database and release level upon which the Software is to be installed. If the
Exhibits designate the Number of Servers, or Number of Sites as "Unlimited,"
"UNL" or similar designation, such designation is restricted to the Platform
Technology designated in the Exhibits.
9.0 Platform Technology and Product Exchange.
9.1 Client may install and Use the Products on only the Platform Technology.
Client may install and Use products, as supplied by ▇▇▇▇▇▇, with another
combination of hardware operating system and database system certified by
▇▇▇▇▇▇ ("New Platform Technology") only by agreement with ▇▇▇▇▇▇ as described
in this Section 9.0.
9.2 Before signing this Agreement, Client may choose to purchase from ▇▇▇▇▇▇
the optional right to exchange the Products in the future, during the Initial
Support Period and any extended period of Support, for then currently available
products supplied by ▇▇▇▇▇▇ with similar pricing, features and functionality
("Exchanged Products") for use with New Platform Technology under ▇▇▇▇▇▇'▇
Platform Technology and Product Exchange Program ("Exchange Program"). If
Client desires to participate in the Exchange Program, ▇▇▇▇▇▇ and Client shall
proceed as follows:
(i) Concurrently with the signing of this Agreement, ▇▇▇▇▇▇ and Client will
enter into an addendum to this Agreement, which includes: a description of the
Exchanged Products and New Platform Technology, the additional license fees and
Support fees payable by Client upon execution of this Agreement and such
addendum, and other terms applicable to the Exchange Program.
(ii) When Client desires to take delivery of the Exchanged Products under the
Exchange Program, Client shall provide ▇▇▇▇▇▇ the location address, Number of
Concurrent Users, server description, operating system and release level,
server serial number, media required, and database and release level upon which
the Exchanged Products are to be installed.
(iii) Subject to the requirements listed in Section 9.2(ii), ▇▇▇▇▇▇ shall
deliver the Exchanged Products to Client, and Client may install and Use the
Exchanged Products on only the New Platform Technology pursuant to the License
under this Agreement.
(iv) Support for the Exchanged Products shall be made available by ▇▇▇▇▇▇
under its then currently available Support offerings.
(v) Promptly after installation and implementation of the Exchanged Products
by Client, Client shall certify in writing to ▇▇▇▇▇▇ that Client has either
destroyed or returned to ▇▇▇▇▇▇ the Products replaced by the Exchanged Products.
If Client has not purchased the right to participate in the Exchange Program by
entering into an addendum concurrently with the signing of this Agreement,
Client may exchange the Products for Use with New Platform Technology in the
future only by entering into a separate Product License Agreement with ▇▇▇▇▇▇
at ▇▇▇▇▇▇'▇ then current license fees and terms.
9.3 If Client desires to obtain other available products from ▇▇▇▇▇▇ that do
not have pricing, features and functionality similar to the Products, those
products shall be licensed for use by Client only by entering into a separate
Product License Agreement with ▇▇▇▇▇▇ at ▇▇▇▇▇▇'▇ then current license fees
and terms.
9.4 All future software products shall be developed and made available by
▇▇▇▇▇▇ at its sole discretion.
10.0 Copies of Software and Documentation.
10.1 Client may copy the Software, in object and/or source code format, only
for backup and archival purposes. All copies of the Software must have all of
the restrictive and proprietary notices as they appear on copies of the
Software provided by ▇▇▇▇▇▇ or its Third Party. For those Products licensed on
an unlimited server basis, Client may request an additional copy of the
Software from ▇▇▇▇▇▇, at a nominal charge to the Client, for each additional
server on which the server portion of the Products shall be installed. Such
request shall be subject to the terms set forth in Section 7.0, 8.0, and 9.0.
10.2 Client may copy Documentation for ▇▇▇▇▇▇-owned Products only on a limited
basis related to the number of Users of the Products. All copies of the
Documentation shall have all of the restrictive and proprietary notices as they
appear on copies of the Documentation provided by ▇▇▇▇▇▇. Unless otherwise
provided for in writing, Client may not copy Documentation for Third
Party-owned Products.
11.0 Source Code.
The Software, in source code format, may be used only for diagnosing problems
and developing Modifications or Enhancements permitted by this Agreement.
Client may grant access to the source code only to its Users who have
personally signed an agreement protecting ▇▇▇▇▇▇'▇ and its Third Parties'
rights under this Agreement. Client shall ensure that only such authorized
Users have access to the source code.
12.0 Infringement.
12.1 ▇▇▇▇▇▇ shall, at its expense, defend any suit or claim brought against
Client and shall indemnify Client against an award of damages and costs against
Client by a final court judgment based on a claim that Client's Use of a
Product infringes a Patent or Copyright, if Client: (a) notifies ▇▇▇▇▇▇ in
writing of the suit or claim within ten (10) days after Client receives notice;
(b) gives ▇▇▇▇▇▇ sole authority to defend or settle the suit or claim; (c)
gives ▇▇▇▇▇▇ all information in Client's control concerning the suit or claim;
and (d) reasonably cooperates and assists ▇▇▇▇▇▇ with defense of the suit
or claim.
12.2 If any Product becomes or in ▇▇▇▇▇▇'▇ opinion is likely to become the
subject of a suit or claim of infringement of a Patent or Copyright, ▇▇▇▇▇▇
shall at its option and expense (a) obtain the right for Client to Use the
Product; (b) replace or modify the Product so that it becomes non-infringing;
or (c) terminate the License for the infringing Product and this Agreement to
the extent it relates to the infringing Product. If ▇▇▇▇▇▇ terminates the
License for the infringing Product: under this Section 12.2 (a) Client shall
cease to Use the infringing Product and shall return it to ▇▇▇▇▇▇; and (b)
▇▇▇▇▇▇ shall pay Client, as Client's sole and exclusive remedy against ▇▇▇▇▇▇
(other than indemnification by ▇▇▇▇▇▇ under Section 12.1) an amount equal to
the License Fee paid under this Agreement for the infringing Product less any
cumulative amortization or depreciation of that Product by Client on its
financial statements as of the date when ▇▇▇▇▇▇ terminates the License for the
infringing Product.
12.3 ▇▇▇▇▇▇ shall have no liability to Client under this Section 12.0 if
any suit or claim of infringement is based upon the use of the Product: (a)
in combination, operation or use with any product not furnished by ▇▇▇▇▇▇ or
its Third Party; (b) in a modified state not authorized by ▇▇▇▇▇▇; or (c) in a
manner other than for which it was designed, if infringement would have been
avoided without such use of the Product. ▇▇▇▇▇▇ shall not be liable to Client
for any infringement outside the country in which the server portion of the
Products is first installed.
13.0 Term and Termination.
13.1 The term of this Agreement shall begin upon the Effective Date, and shall
continue until terminated by either Party pursuant to the terms and conditions
of this Agreement.
13.2 ▇▇▇▇▇▇ may terminate this Agreement and the License granted to Client if
▇▇▇▇▇▇ is in compliance with this Agreement and either (a) Client fails to pay
▇▇▇▇▇▇ any amounts when due ▇▇▇▇▇▇ or, (b) Client is in material default of any
other provision of this Agreement and such default has not been cured within
ninety 90 days after ▇▇▇▇▇▇ gives Client written notice describing the default.
Upon termination in accordance with this Section 13.2, ▇▇▇▇▇▇ may:
(i) declare all amounts owed to ▇▇▇▇▇▇ by Client to be immediately due and
payable;
(ii) require that Client cease any further use of the Products and
immediately return the Products and any copies to ▇▇▇▇▇▇; and
(iii) cease performance of all of ▇▇▇▇▇▇'▇ obligations under this Agreement
without liability to Client.
13.3 Client may terminate this Agreement and the License granted to Client if
Client is in compliance with this Agreement and ▇▇▇▇▇▇ is in material default
of any provision of this Agreement and such default has not been cured within
ninety 90 days after Client gives ▇▇▇▇▇▇ written notice describing the default.
Upon such termination:
(i) Client shall pay ▇▇▇▇▇▇'▇ outstanding invoices that do not pertain to
▇▇▇▇▇▇'▇ default, but Client shall have no further payment obligations to
▇▇▇▇▇▇ under this Agreement; and
(ii) ▇▇▇▇▇▇ may require that Client cease any further use of the Products and
immediately return the Products and any copies to ▇▇▇▇▇▇.
13.4 Upon termination of this Agreement by ▇▇▇▇▇▇ or Client, Sections 3.0,
4.6, 5.0, 6.0, and 12.0 through 26.0 of this Agreement shall survive.
14.0 Limitations of Liability.
14.1 AFTER THE PARTIES HAVE SIGNED THIS AGREEMENT, CLIENT'S EXCLUSIVE REMEDIES
FOR PRODUCT RELATED MATTERS SHALL BE AS DESCRIBED IN THIS AGREEMENT, SUBJECT TO
THE LIMITATIONS OF SECTION 14.0.
14.2▇▇▇▇▇▇ SHALL NOT BE LIABLE FOR ANY EXPENSE OR DAMAGE ARISING OUT OF ANY
ERASURE, DAMAGE OR DESTRUCTION OF FILES, DATA OR PROGRAMS. CLIENT SHALL BE
RESPONSIBLE FOR MAKING BACKUP COPIES OF FILES, DATA, AND PROGRAMS.
14.3 IN NO EVENT SHALL ▇▇▇▇▇▇ OR ITS THIRD PARTIES BE LIABLE FOR SPECIAL,
INDIRECT, THIRD PARTY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS.
NEITHER PARTY SHALL SEEK, OR OTHERWISE APPLY FOR, ANY PUNITIVE OR EXEMPLARY
DAMAGES.
14.4 EXCEPT ONLY FOR INDEMNIFICATION BY ▇▇▇▇▇▇ UNDER SECTION 12.1 ABOVE,
▇▇▇▇▇▇'▇ AND ITS THIRD PARTIES' MAXIMUM AGGREGATE LIABILITY FOR DAMAGES TO
CLIENT OR OTHERS SHALL BE LIMITED TO ACTUAL DIRECT MONEY DAMAGES IN AN AMOUNT
NOT TO EXCEED (A) THE INITIAL LICENSE FEE PAID BY CLIENT FOR THE PRODUCTS
SUBJECT TO THE DAMAGE CLAIM IF THE CLAIM AROSE WITHIN ONE (1) YEAR AFTER THE
EFFECTIVE DATE; OR (B) THE MOST RECENT ANNUAL SUPPORT FEE PAID BY CLIENT FOR
THE PRODUCTS SUBJECT TO THE DAMAGE CLAIM IF THE CLAIM AROSE MORE THAN ONE (1)
YEAR AFTER THE EFFECTIVE DATE.
14.5 CLIENT ACKNOWLEDGES THAT THE LIMITATIONS ON LIABILITY IN THIS SECTION
14 ARE REASONABLE. THE REMEDIES PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE.
EXCEPT ONLY FOR ACTIONS BY ▇▇▇▇▇▇ TO PROTECT INTELLECTUAL PROPERTY RIGHTS OR
FOR BREACH OF SECTION 17.0, NEITHER PARTY SHALL SEEK, OR OTHERWISE APPLY FOR,
ANY EQUITABLE REMEDIES.
15.0 Assignment.
Client shall not assign this Agreement or transfer, by operation of law or
otherwise, any of its respective rights or obligations under this Agreement
(including, without limitation, by a change in the majority ownership or
control of Client) without the prior written consent of ▇▇▇▇▇▇, such consent
to not be unreasonably withheld. Any assignment or transfer in violation of
this Section 15.0 shall be void.
16.0 Waiver.
No term or provision of this Agreement shall be deemed waived and no breach
shall be deemed excused, unless such waiver is in writing and signed by the
Party claimed to have waived.
17.0 Export.
Client shall not export the Products from the country in which the server
portion of the Products is first installed, without the prior written
authorization of ▇▇▇▇▇▇ and compliance with applicable export laws.
18.0 Excusable Delay.
Neither ▇▇▇▇▇▇ nor Client shall be deemed to be in default of any provision
of this Agreement or for any failure in performance, resulting from acts or
events beyond the reasonable control of ▇▇▇▇▇▇ or Client, as the case may be.
For purposes of this Agreement, such acts shall include, but not be limited to,
acts of God, civil or military authority, civil disturbance, war, strikes,
fires, other catastrophes, or other such major events beyond ▇▇▇▇▇▇'▇ or
Client's reasonable control. This Section 18.0 shall not delay or excuse
Client's payment obligations.
19.0 Governing Law and Dispute Resolution.
This Agreement is governed by and construed in all respects in accordance
with the laws of the State of Minnesota, USA. (without regard to conflicts of
laws principles), excluding the United Nations Convention on Contracts for the
International Sale of Goods. Except only for disputes for which injunctive
relief is sought to prevent the unauthorized use or disclosure of the Products,
any disputes between Client and ▇▇▇▇▇▇ (which are not otherwise resolved by
the Parties) shall be submitted to binding arbitration in Minneapolis,
Minnesota, USA. in accordance with the then prevailing rules of the American
Arbitration Association. Any action, to confirm an arbitration award or any
other legal action related to this Agreement, the Products or other dispute
between Client and ▇▇▇▇▇▇, shall be instituted only in a federal or state court
in the State of Minnesota, USA., and Client shall submit to personal
jurisdiction of these courts in any such legal action. ▇▇▇▇▇▇ and Client each
waive their right to a trial by jury for any disputes between the Parties.
20.0 Legal Fees and Costs.
The prevailing Party shall be entitled to collect from the other Party, the
prevailing Party's reasonable legal fees and costs in connection with the
enforcement of this Agreement.
21.0 Independent Contractor.
▇▇▇▇▇▇ is providing the Products and Support under this Agreement as an
independent contractor, and its personnel shall not be considered employees
or agents of Client.
22.0 Severance and Interpretation.
If any provision of this Agreement is found to be unenforceable, such
provision shall be deemed to be deleted or narrowly construed to such extent
as is necessary to make it enforceable and this Agreement shall otherwise
remain in full force and effect. If an ambiguity or question of intent arises,
this Agreement shall be construed as if drafted jointly by the Parties and no
presumption or burden of proof shall arise favoring or disfavoring either Party
by virtue of authorship of any of the provisions of this Agreement.
23.0 Time Limitation.
Except for actions for non-payment or for breach of ▇▇▇▇▇▇'▇ or its Third
Parties' Intellectual Property Rights, no action arising out of or relating to
this Agreement may be brought later than two (2) years after the cause of
action became known to the injured Party.
24.0 Notices.
All notices required or permitted under this Agreement and all requests for
approvals, consents, and waivers must be delivered by a method providing for
proof of delivery. A confirmed facsimile transmission shall be deemed to
provide proof of delivery. Any notice or request shall be deemed to have been
given on the date of delivery. Notices and requests must be delivered to the
Parties at the addresses on the first page of this Agreement until a different
address has been designated by notice to the other Party.
25.0 Non-Solicitation of Employees.
Neither Party shall directly solicit the services or employment of any employee
or agent of the other Party for a period beginning at the Effective Date and
ending twelve (12) months after the last date of initial delivery of any of the
Products as set forth in the Exhibits (as of the Effective Date). The
soliciting Party, who violates this Section 25.0, shall pay to the other Party
an amount equal to one (1) year's salary for any solicited employee of the other
Party, as liquidated damages and not as a penalty. The amount of annual salary
shall be the annual salary in effect at the date the employee was solicited.
For purposes of this Section 25.0, the term "employee" means current or former
employees of the other Party who were employed by the other Party at any time
during the period beginning at the Effective Date and ending twelve (12)
months after the last date of initial delivery of any Products.
26.0 Publicity.
Either Party may (in any press release, advertising or other publicly-
disseminated materials) refer to the other Party, to the existence and terms of
this Agreement, to the Products licensed by Client under this Agreement, and to
background information leading to this Agreement, including, for example:
▇▇▇▇▇▇ competitors and competing products considered by Client, net value of
the Agreement, and Client business needs and reasons for selecting ▇▇▇▇▇▇ and
its Products. Before disseminating this information publicly, the disclosing
Party shall review the factual content of the disclosures with the other Party.
Notwithstanding the foregoing, Client shall not publicly disclose special
pricing, discounts, payment terms, or addenda contained in, or attached to,
this Agreement without the prior written consent of ▇▇▇▇▇▇.
27.0 Entire Agreement.
This Agreement and the Exhibits listed below and referred to herein, together
with any addenda signed by the Parties (collectively, the "Agreement"),
constitute the entire agreement between ▇▇▇▇▇▇ and Client with respect to the
Products, Support, and other subject matter of this Agreement, and may only be
modified by a written amendment or addendum signed by both ▇▇▇▇▇▇ and Client.
No employee, agent, or other representative of either ▇▇▇▇▇▇ or Client has
authority to bind the other with regard to any statement, representation,
warranty, or other expression unless it is specifically included within the
express terms of this Agreement or a written addendum signed by both ▇▇▇▇▇▇ and
Client. All purchase orders, prior agreements, representations, statements,
proposals, negotiations, understandings, and undertakings with respect to the
subject matter of this Agreement are superseded by this Agreement.
For ▇▇▇▇▇▇ ASSOCIATES, INC. For ▇▇▇▇▇▇▇▇.▇▇▇, Inc.
/s/Rhos ▇. ▇▇▇▇ /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Area Sales Director, West Field Operations President
(Title) (Title)
7/19/99 7/16/99
(Date) (Date)
EXHIBITS: Attached
ADDENDUM
TO
▇▇▇▇▇▇ SOFTWARE PRODUCT LICENSE AGREEMENT
This Addendum ("Addendum") modifies the ▇▇▇▇▇▇ Software Product License
Agreement ("Agreement") entered into between ▇▇▇▇▇▇ Associates, Inc. dba
▇▇▇▇▇▇ Software ("▇▇▇▇▇▇") and the undersigned Client, and is effective as
of the date signed by ▇▇▇▇▇▇. All of the capitalized terms not otherwise
defined in this Addendum have the same respective meanings as contained in
the Agreement. The following sections or paragraphs replace or are in
addition to the respective sections or paragraphs contained in the
Agreement. The sections or paragraphs of the Agreement that are not
expressly replaced by this Addendum shall remain in effect pursuant
to their terms.
SECTION 3.4 OF THE AGREEMENT IS DELETED IN ITS ENTIRETY AND REPLACED WITH
THE FOLLOWING:
3.4 "Initial Support Period" means twelve (12) months after
initial delivery of the Products.
SECTION 5.2 OF THE AGREEMENT IS DELETED IN ITS ENTIRETY AND REPLACED
WITH THE FOLLOWING:
5.2 Client acknowledges and agrees that ▇▇▇▇▇▇ and its respective
Third Parties shall retain title to all Intellectual Property Rights
related to the Products, copies of the Products, and Modifications
or Enhancements, subject to the License. If Client makes any
Modifications or Enhancements, Client shall assign to ▇▇▇▇▇▇ and its
respective Third Parties all Intellectual Property Rights to the
Modifications or Enhancements. ▇▇▇▇▇▇ shall not knowingly sell the
Modifications or Enhancement assigned to ▇▇▇▇▇▇ by Client to any
entity. Modifications or Enhancements may be used in conjunction
with the Products only in compliance with this Agreement. Client
may develop and own software which interfaces with the Products but
does not contain or use any object code or source code developed by
▇▇▇▇▇▇ or its Third Parties.
SECTION 13.0 OF THE AGREEMENT IS DELETED IN ITS ENTIRETY AND
REPLACED WITH THE FOLLOWING:
13.1 The term of this Agreement shall begin upon the Effective
Date, and shall continue until terminated by either Party pursuant
to the terms and conditions of this Agreement.
13.2 ▇▇▇▇▇▇ may terminate this Agreement and the License granted to
Client if ▇▇▇▇▇▇ is in compliance with this Agreement and either (a)
Client fails to pay ▇▇▇▇▇▇ any amounts when due ▇▇▇▇▇▇ or, (b)
Client is in material default of any other provision of this
Agreement and such default has not been cured within sixty 60 days
after ▇▇▇▇▇▇ gives Client written notice describing the default.
Upon termination in accordance with this Section 13.2, ▇▇▇▇▇▇ may:
(i) declare all amounts owed to ▇▇▇▇▇▇ by Client to be
immediately due and payable;
(ii) require that Client cease any further use of the Products
and immediately return the Products and any copies to ▇▇▇▇▇▇; and
(iii) cease performance of all of ▇▇▇▇▇▇'▇ obligations under
this Agreement without liability to Client.
13.3 Client may terminate this Agreement and the License granted to
Client if Client is in compliance with this Agreement and ▇▇▇▇▇▇ is
in material default of any provision of this Agreement and such
default has not been cured within sixty 60 days after Client gives
▇▇▇▇▇▇ written notice describing the default. Upon such termination:
(i) Client shall pay ▇▇▇▇▇▇'▇ outstanding invoices that
do not pertain to ▇▇▇▇▇▇'▇ default, but Client shall have
no further payment obligations to ▇▇▇▇▇▇ under this
Agreement; and
(ii) ▇▇▇▇▇▇ may require that Client cease any further use
of the Products and immediately return the Products and
any copies to ▇▇▇▇▇▇.
13.4 Upon termination of this Agreement by ▇▇▇▇▇▇ or Client,
Sections 3.0, 4.6, 5.0, 6.0, and 12.0 through 26.0 of this Agreement
shall survive.
SECTION 19.0 OF THE AGREEMENT IS DELETED IN ITS ENTIRETY AND
REPLACED WITH THE FOLLOWING:
19.0 This Agreement is governed by and construed in all respects in
accordance with the laws of the State of Minnesota, U.S.A. (without
regard to conflicts of laws principles), excluding the United
Nations Convention on Contracts for the International Sale of Goods.
Except only for disputes for which injunctive relief is sought to
prevent the unauthorized use or disclosure of the Products, any
disputes between the Parties (which are not otherwise resolved by
the Parties) shall be submitted to binding arbitration in accordance
with the then prevailing rules of the American Arbitration
Association (an "Arbitration Proceeding"). If ▇▇▇▇▇▇ initiates an
Arbitration Proceeding, the Arbitration Proceeding shall be held in
Irvine, California. If the Client initiates an Arbitration
Proceeding, the Arbitration Proceeding shall be held in Minneapolis,
Minnesota. Any action to confirm an arbitration award or any other
legal action related to this Agreement, the Products or other
dispute between the Client and ▇▇▇▇▇▇, shall be instituted only in a
federal court in the State of California, if initiated by ▇▇▇▇▇▇, or
in the State of Minnesota, if initiated by the Client; and the
Parties shall submit to personal jurisdiction of such respective
courts in any such legal action. ▇▇▇▇▇▇ and the Client each waive
their right to a trial by jury for any disputes between the Parties.
At least thirty (30) days before either Party initiates an
arbitration proceeding, authorized representatives of ▇▇▇▇▇▇ and the
Client shall review and become familiar with the subject matter of
the dispute, and meet in person or by telephone to review and
attempt to resolve the dispute in good faith.
ADDITIONAL USER PRICING: Financial Suite Users: List price is
$6,600/user. 2TheMart discounted price is $4,620/user sold in
groups of 5, valid for three years from contract execution date.
After three years, ▇▇▇▇▇▇ Software will extend to ▇▇▇▇▇▇▇▇.▇▇▇ a 30%
discount on the then current list price.
FINAL PAYMENT TERMS
OPTION A:
On or before May 01, 2000, 2TheMart must exercise an option to
purchase unlimited Vendor Information Named users, unlimited
Net.Commerce Business Packs, and unlimited Business Components
Integrators by paying a one time fee of $573,070. This fee is due
prior to May 10, 2000. THIS DOES NOT INCLUDE ANY OF THE ADDITIONAL
USER PRICING FOR THE FINANCIAL SUITE USERS.
OPTION B:
The following payment terms will be applicable based on the GROSS
REVENUES of ▇▇▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇▇ Software will use ▇▇▇▇▇▇▇▇▇.▇▇▇
Inc., quarterly earnings announcement as the criteria for billing.
An annual review of the 2TheMarts Financial Statements will also be
performed. These payments are cumulative in nature. EXAMPLE:
CLIENT HAS MADE FIRST PAYMENT OF $30,000 BASED ON REVENUES OF
$51,000,000. UPON THE RELEASE OF THE NEXT QUARTERLY EARNINGS,
CLIENT REPORTS REVENUES OF $501,000,000. CLIENT MUST PAY THE
CUMULATIVE TOTAL OF $235,000 ($50,000 + $85,000 + $100,000) PER THE
PAYMENT SCHEDULE BELOW.
When revenues exceed: 50 Million Paymentis: $30,000
150 Million $50,000
250 Million $85,000
500 Million $100,000
750 Million $125,000
1 Billion $150,000
2 Billion $500,000
3 Billion $500,000
4 Billion $500,000
5 Billion $500,000
6 Billion $500,000
7 Billion $500,000
8 Billion $500,000
9 Billion $500,000
10 Billion $1 million****
****With this option payment, ▇▇▇▇▇▇▇▇.▇▇▇ will no longer have
any revenue based obligations for the unlimited Vendor
Information Named users, unlimited Net.Commerce Business
Packs, and unlimited Business Components Integrators as
initially provided as part of the initial software shipment.
▇▇▇▇▇▇▇▇.▇▇▇ will have full and final unlimited corporate
licensing for Vendor Information Named users, Net.Commerce
Business Packs, and unlimited Business Components Integrators.
This does not include any of the additional user pricing for
the Financial Suite Users as noted above.
FOR ▇▇▇▇▇▇ ASSOCIATES, INC.
/s/Rhos ▇. ▇▇▇▇
Area Sales Director, West Field Operations
Date: 7/19/99
FOR ▇▇▇▇▇▇▇▇.▇▇▇, INC.
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
President
Date: 7/19/99
▇▇▇▇▇▇ SOFTWARE
Beta Test Agreement
This Beta Test Agreement ("Beta Agreement") modifies the ▇▇▇▇▇▇ Software
product license agreement ("Agreement") entered into between ▇▇▇▇▇▇ Associates,
Inc. dba ▇▇▇▇▇▇ Software ("▇▇▇▇▇▇") and the undersigned Client, whose name,
principal business address, and jurisdiction of incorporation are set forth
below, (collectively "the parties"), and is effective as of the date signed
by ▇▇▇▇▇▇. All of the capitalized terms not otherwise defined in this Beta
Agreement have the same respective meanings as contained in the Agreement.
The provisions of the Agreement that are not expressly nmodified by this Beta
Agreement shall remain in effect pursuant to their terms.
Client Name: ▇▇▇▇▇▇▇▇.▇▇▇, INC.
Address: 18301 ▇▇▇ ▇▇▇▇▇▇ AVE, SEVENTH FLOOR
City and State/Zip or Province/Postal Code: ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Country: USA
"Effective" Date means the date when authorized representatives of both ▇▇▇▇▇▇
and Client have signed this Beta Agreement as indicated at the end of this Beta
Agreement in the space marked "Date" below ▇▇▇▇▇▇'▇ signature to this
Agreement.
1.0 Intent of the Beta Agreement.
The intent of this Beta Agreement is to set forth the obligations of the
Parties with respect to the Use of the designated Beta Test Products
("Beta Products"), as set forth in the Beta Worksheet, attached as Exhibit A.
2.0 Acknowledgment.
The Parties acknowledge and agree that the Beta Products are test versions
of the Products, are not generally available, may contain defects, are not
expected to perform fully, per the related specifications, upon installation,
and ▇▇▇▇▇▇ shall have no obligation under this Beta Agreement to repair such
defects. The Parties further acknowledge and agree that ▇▇▇▇▇▇ shall have the
right to use, in any matter and for any purpose, the information gained as the
result of Use of the Beta Products, exclusive of that which is mutually agreed
upon as proprietary in nature to the Client.
3.0 Obligations of Client.
Under the terms of this Beta Agreement Client shall:
1. assign a full-time employee as Client project leader to actively
participate, under the leadership of the ▇▇▇▇▇▇ designated project
facilitator, in the development and direction of the Beta Site Implementation
Plan ("Plan"), in the coordination of Client resources in support of the Plan,
and in serving as the primary Client communication contact in relation to the
Plan.
2. provide trained technical and application personnel who shall possess the
skills and training necessary to perform the Client-assigned tasks related to
the Plan.
3. implement, concurrently, the Beta Products and other products as specified
in the Plan.
4. provide data to ▇▇▇▇▇▇, using appropriate media, for the purposes of
conversion testing.
5. test the identified features, functionality, and performance of the Beta
Products as set forth on Exhibit A.
6. refrain from developing modifications to the Beta Products and other
products, both directly and indirectly, unless agreed upon in writing by
▇▇▇▇▇▇, for the Term of this Beta Agreement.
7. permit modem support access and Internet patch download capability for
▇▇▇▇▇▇ to the Beta Products and other products for the Term of this Beta
Agreement.
8. require Client's third parties, who have need of access to the Beta
Products and other products, to agree to and adhere to the terms and conditions
of this Beta Agreement.
9. serve as a beta site reference for ▇▇▇▇▇▇'▇ Clients and prospective clients
for a period of one (1) year from Client's receipt of the Beta Products, to the
extent of permitting ▇▇▇▇▇▇ pre-arranged site visits and telephone contact for
▇▇▇▇▇▇'▇ Clients and prospective clients.
10. participate in ▇▇▇▇▇▇ public relations activities promoting the Beta
Product, including participation in press conferences, press and industry
analyst interviews, and providing quotes for press releases and promotional
materials.
11. participate in ▇▇▇▇▇▇ User Exchange sessions under the direction of ▇▇▇▇▇▇
personnel.
12. pay any travel and per diem expenses incurred by ▇▇▇▇▇▇ or Client in the
performance of activities related to the Plan.
13. install any mandated program updates or repairs as required by ▇▇▇▇▇▇.
14. return the Beta Products to ▇▇▇▇▇▇ if ▇▇▇▇▇▇ elects to recall the Beta
Products at its sole discretion.
15. upgrade from the Beta Product version to the generally available version
of the Beta Products no later than ninety (90) days after the generally
available version is made available by ▇▇▇▇▇▇.
4.0 Obligations of ▇▇▇▇▇▇.
Under the terms of this Beta Agreement ▇▇▇▇▇▇ shall:
1. provide to Client the Beta Products set forth in Exhibit A; such Beta
Products to have been tested by ▇▇▇▇▇▇ and the documentation for which shall
be provided by ▇▇▇▇▇▇ in draft form.
2. provide a ▇▇▇▇▇▇ employee ("Client Service Manager"), utilizing ▇▇▇▇▇▇'▇
project methodology, to direct the development and administration of the Plan,
to coordinate ▇▇▇▇▇▇ resources in support of the Plan, to provide Plan status
reports to Client and ▇▇▇▇▇▇, and to serve as ▇▇▇▇▇▇'▇ communication contact
in relation to the Plan.
3. provide initial user upgrade training at a Client designated site, billed
in accordance with the ▇▇▇▇▇▇ Software Agreement for Services Fees, for the
Beta Products.
4. provide trained technical and application personnel who shall possess the
skills and training necessary to perform the ▇▇▇▇▇▇-assigned tasks related to
the Plan.
5. provide modem connect support and Internet patch download capabilities for
the Beta Products.
6. provide Beta Product support during normal ▇▇▇▇▇▇ support hours.
After hours emergency support shall be provided for Beta Products only if
pre-arranged and mutually agreed upon between the Parties.
7. provide continued access to key Beta Product(s) personnel for the Term
of this Beta Agreement.
8. provide upgrade consulting services, either directly or indirectly, to
address Client's data conversion issues.
9. provide free registration for two (2) Client employees at one (1) ▇▇▇▇▇▇
Software Conference and User Exchange subsequent to the Term of this Beta
Agreement.
10. provide on-site assistance resources from ▇▇▇▇▇▇'▇ Research & Development
Department to participate in the beta test process. Such resources shall be
provided free of charge to client for up to a mzximum of [ ] on-site visits.
▇▇▇▇▇▇ Client Service Managers and Service Consultants shall be billed subject
to a ▇▇▇▇▇▇ Software Agreement for Services Fees entered into between ▇▇▇▇▇▇
and Client.
5.0 Term & Termination.
5.1 This Beta Agreement shall be in effect for a period commencing with the
date signed by ▇▇▇▇▇▇ until ("Term").
5.2 Either Party may terminate this Beta Agreement prior to the expiration
of the Term, without cause, on sixty (60) days' notice.
5.3 Either Party may terminate this Beta Agreement prior to the expiration of
the Term for material breach by the other Party upon (30) days' written notice
specifying the breach, which termination shall be effective at the end of the
(30) day period unless one breach has earlier been cured.
Notwithstanding the foregoing, on any material breach of the intellectual
property rights of a Party, that Party may immediately terminate this
agreement without notice.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
For ▇▇▇▇▇▇ ASSOCIATES, INC. For ▇▇▇▇▇▇▇▇.▇▇▇, Inc.
/s/ Rhos ▇. ▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
(Authorized Signature) (Authorized Signature)
Rhos ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
(Typed Name) (Typed Name)
Area Sales Director, West Field Operations President
(Title) (Title)
7/19/99 7/16/99
(Date) (Date)
EXHIBIT A Attached
EXHIBIT A
BETA WORKSHEET
Location Address At Which the Beta Products Are Installed:
Site: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Hardware Platform: RS6000
Serial Number:
Operating System & Release Level: Unix
Media: CD
Database: Oracle
Beta Product:
Business Component Integrators
Net. Commerce Business Pack
DB2 Database
Designated Features:
Expectations:
ADDENDUM
TO
▇▇▇▇▇▇ SOFTWARE BETA TEST AGREEMENT
This Addendum ("Addendum") modifies the ▇▇▇▇▇▇ Software Beta Test Agreement
("Agreement") entered into between ▇▇▇▇▇▇ Associates, Inc. dba ▇▇▇▇▇▇
Software ("▇▇▇▇▇▇") and the undersigned Client, and is effective as of the
date signed by ▇▇▇▇▇▇. The following sections or paragraphs replace or are
in addition to the respective sections or paragraphs contained in the
Agreement. The sections or paragraphs of the Agreement that are not
expressly replaced by this Addendum shall remain in effect pursuant to their
terms.
SECTION 5.2 of the Agreement is deleted in its entirety and replaced with
the following
5.2 Either Party may terminate this Beta Agreement prior to the expiration
of the Term, without cause, on sixty (60) days' prior written notice.
ADDITIONAL OBLIGATIONS:
1. Designate ▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice-President, Collaborative
Commerce Suite, as the ▇▇▇▇▇▇ Executive Sponsor for this
initiative.
2. In the 1st week of August, deliver the beta code for the
Business Component Integrator (BCI) and Net-Commerce Pack
(NCP) solutions.
3. Commit to a series of meetings from July through October
99 directly between our Development personnel and 2TheMart
designees for the purposes of joint visioning and further
definition of 2TheMart specific interface requirements. It is
intended that one of these meetings will be at ▇▇▇▇▇▇
Corporate headquarters. This meeting is tentatively scheduled
for July 20, 1999. The designated sites for the other
meetings will be at the discretion of 2TheMart.
4. Provide direct telephone access, for the appropriate
2TheMart designees, to the ▇▇▇▇▇▇ Software engineers and
managers responsible for development of our Collaborative
Commerce suite. There are 8 individuals currently dedicated
to this development task, and they will be directed with
respect to 2TheMart concerns by ▇▇ ▇▇▇▇ (Chief Architect and
Developer) and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Senior Analyst Collaborative
Commerce) whom have been designated as the direct interfaces
for 2TheMart.
5. Provide ▇▇▇▇▇▇ ▇▇▇▇, from IBM Global Services, as on-site
assistance for this initiative during the month of August.
Lauren is an Advisory IT Specialist, Internet Developer
currently working on this project at ▇▇▇▇▇▇ corporate
headquarters. An additional IBM Global Services member with
▇▇▇▇▇▇ expertise will be on-site for the month of August as well.
6. Provide beta product support during normal ▇▇▇▇▇▇ support
hours. After hours emergency support will also be provided
for these products as requirements dictate.
7. Work aggressively with our partners to insure a functional
environment is available for 2TheMart in mid-September, 1999
to help facilitate your go-live date October 8th. ▇▇▇▇▇▇ will
provide knowledge and assistance in facilitating the following
API's and transaction sets:
Outbound
- OrderCreate
- Use OrderCreate to process orders that begin
with the Net.Commerce system
- The message contains order, shopper, billing,
merchant, and shipping information from the
ORDERS, SHOPPER, SHADDR, SHOPGRP, MERCHANT,
SHIPTO, PRODCUT and SHIPMODE tables
- The ▇▇▇▇▇▇ BCI will receive the message and
execute ▇▇▇▇▇▇ API OrderA to add the order to
▇▇▇▇▇▇ Order Entry in an unreleased state.
View/modify the order via a ▇▇▇▇▇▇ ▇▇ Form (eg. OE10.3)
Inbound
- OrderStatusUpdate
- When OE129 is run (on request), ▇▇▇▇▇▇
extracts the orderstatus for orders that have
been shipped and adds an entry to WOMA which
will alert the BCI Agent to begin ▇▇▇▇▇▇ API
OrdStatusU
- Net.Commerce updates the tables ORDSTAT and
ORDISTAT with the new order status information
- ProductQuantityUpdate
- When IC223 is run (on request), ▇▇▇▇▇▇
extracts the product availability and adds an
entry to WOMA which will alert the BCI Agent
to begin ▇▇▇▇▇▇ API ItmQtyU
Net.Commerce updates the PRODUCT table with
the new inventory information
- ProductPriceUpdate
- When BL243 is run (on request), ▇▇▇▇▇▇
extracts the product price and adds an entry
to WOMA which will alert the BCI Agent to
begin ▇▇▇▇▇▇ API ItmPriceU
- Net.Commerce updates the PRODPRCS table with
the new inventory information
-CustomerNew
- When a new customer is added to ▇▇▇▇▇▇ using
AR09 & AR10, an entry to WOMA will alert the
BCI Agent to begin ▇▇▇▇▇▇ API CustomrA
- Net.Commerce updates information for a new
shopper by calling the AdminRegisterNew command
-CustomerUpdate
- When a customer is updated in ▇▇▇▇▇▇ using
AR09 & AR10, an entry to WOMA will alert the
BCI Agent to begin ▇▇▇▇▇▇ API CustomerU
- Net.Commerce updates information for a
registered shopper by calling the
AdminRegisterNew command
8. Continue to make our best efforts to insure the General
Availability (GA) date for the BCI and NCP is achieved by the
end of October, 1999.
9. In the 1st week of October, deliver the beta code for DB2
database support of the ▇▇▇▇▇▇ applications, running on an IBM
RS/6000 server.
10. Provide at no cost to 2TheMart Oracle RDBMS licenses.
These licenses will be returned to ▇▇▇▇▇▇ upon the conversion
to the DB2 database.
11. Provide 10 technical consulting days to administer the
Oracle database.
12. Provide a General Availability (GA) software date for
▇▇▇▇▇▇ applications operating on an IBM RS/6000 server,
utilizing an AIX/ DB2 database that would allow 2TheMart to
convert from their initial Oracle database environment to the
DB2 database environment prior to March 1, 2000.
13. Waive all charges for the aforementioned consulting and
training services with the exception of the necessary travel
related expenditures.
For ▇▇▇▇▇▇ ASSOCIATES, INC., For ▇▇▇▇▇▇▇▇.▇▇▇, Inc.
/s/ Rhos ▇. ▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
(Authorized Signature) (Authorized Signature)
Rhos ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
(Printed Name) (Printed Name)
Area Sales Director, West Field Operations President
(Title) (Title)
7/19/99 7/16/99
(Date) (Date)