Exhibit 10.16
SOFTWARE LICENSE AGREEMENT
This Agreement is entered into on the Effective Date, as hereinafter
defined, by and between IntellAgent Control Corporation f/k/a Veritas
Technologies, Inc., a Texas corporation with offices in Dallas, Texas ("ICC"),
and the entity or individual identified in the Software License Exhibit,
attached hereto and incorporated herein for all purposes, as "Licensee" (the
"Licensee").
IN CONSIDERATION OF the mutual representations, covenants and
undertakings hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, ICC and Licensee,
intending to be legally bound, agree as follows:
DEFINITIONS
1. For Purposes of this Agreement, the following terms shall have the
following meanings unless the context clearly indicates otherwise:
a. Act!. "Act!" means the computer software entitled ACT!
owned and/or licensed by Symantec Corporation and designated by the version or
version number in the System Requirements. This does not include ACT! for DOS
(single user or network version), ACT! for Hewlett-Packard 95LX or any version
or version number of ACT! not designated in the system Requirements.
b. Additional User. "Additional User" means each individual
who uses the Licensed Materials in excess of the number of Authorized Users
specified in the Software License Exhibit.
c. Additional User Fee. "Additional User Fee" means the fee
payable to ICC by Licensee, as designated in the Software License Exhibit, for
use of the Licensed Materials by each Additional User. If no Additional User Fee
is designated, then the Additional User Fee shall be the amount published by ICC
as its standard Additional User Fee at the time the Additional User Fee accrues.
d. Authorized Users. "Authorized Users" means the number of
individuals who are authorized to use the Licensed Materials as specified in the
Software License Exhibit.
e. Effective Date. "Effective Date" means the date so
identified in the Software License Exhibit.
f. Intellectual Property Rights. "Intellectual Property Rights
mean any patent, trademark, copyright, trade secret or contract rights in and to
the Licensed Materials.
g. Licensed Database/Templates. "Licensed Database/Templates"
mean those parts of the ICC Software that ICC designates a licensee may modify
subject to the Paragraph entitled "Permitted Alterations." Licensed
Database/Templates include, but are not limited to, the ICC product known as
IntellAgent Control.-TM-
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h. License Fee. "License Fee" means the nonrefundable fee
specified in the Software License Exhibit.
i. Licensed Materials. "Licensed Materials" mean the ICC
Software and Support Materials delivered to the Licensee under this Agreement.
j. Lotus Notes. "Lotus Notes" means the computer software
owned and/or licensed by Lotus Development Corporation and designated by the
version or version number set forth in the System Requirements. This does not
include any Lotus Notes version or version number not designated in the System
Requirements.
k. Modification. "Modification" means any modification,
change, enhancement or improvement to the Licensed Materials.
l. Software Defect. "Software Defect" means a failure of the
ICC Software to function substantially in accordance with the applicable Support
Materials.
m. Support Materials. "Support Materials" mean printed or
written materials relating to the ICC Software including, without limitation,
manuals, specifications, and instructions, and any copies of any of the
foregoing, in any medium, delivered to the Licensee under this Agreement.
n. System Requirements. "System Requirements" mean the system
requirements published from time to time by ICC for the applicable component
and/or version of the ICC Software including, but not limited to, the required
versions of Third Party Software.
o. Third Party Software. "Third Party Software" means Act! and
Lotus Notes as designated in the System Requirements.
p. ICC Confidential Information. "ICC Confidential
Information" means trade secrets, knowledge, data or other proprietary
information of ICC not generally known to the public. ICC Confidential
Information includes, without limitation, the Licensed Materials, inventions,
trade secrets, ideas, processes, formulae, flow charts, design specifications,
source and object code, data, programs, documentation, unpublished works of
authorship, know-how, improvements, discoveries, developments, designs and
techniques, including without limitation, all code, parameter files, execution
files and other files constituting a part of the Licensed Materials, along with
the design, layout and operation of the IntellAgent Control-TM- database. ICC
Confidential Information does not include (i) information already known or
independently developed by the Licensee; (ii) information in the public domain
through no wrongful act of the Licensee; (iii) information that subsequently
enters the public domain through no wrongful act of the Licensee; or (iv)
information received by the Licensee from a third party who was free to disclose
it.
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q. Licensee Confidential Information. "Licensee Confidential
Information" means proprietary information of Licensee, not generally known to
the public, that is specifically identified by Licensee in a written notice
delivered to ICC as Licensee Confidential Information; provided, however, that
Licensee Confidential Information does not include program code, parameter or
execution files for the Licensed Materials and Modifications, routines,
algorithms, software structure, sequence, or organization; information already
known or independently developed by ICC; information in the public domain
through no wrongful act of ICC; information that subsequently enters the public
domain through no wrongful act of ICC; and information received by ICC from a
third party who was free to disclose it.
r. ICC Software. "ICC Software" means the version of computer
software entitled IntellAgents-TM- and/or the Licensed Database/Templates, as
identified in the Software License Exhibit, along with each copy, translation,
compilation, update, modification or enhancement of all or any part of the ICC
Software, in any medium, delivered to Licensee or made by ICC under this
Agreement.
GENERAL PROVISIONS
2. License Fee. The License Fee is due and payable and Licensee agrees
to pay the Licensee Fee to ICC on or before the Effective Date.
3. Taxes and Duties. Except for taxes based on the net income of ICC
and ICC's franchise taxes, Licensee shall be responsible for all taxes on sums
payable to ICC under this Agreement, including without limitation sales and use
taxes. Licensee shall pay all customs duties, import fees, and similar levies,
as applicable, on shipments from ICC.
4. Exclusion of Third Party Software. Neither the License Fee nor any
other sums payable under this Agreement include the cost of the Third Party
Software.
5. Invoice; Payment and Late Charges. All fees payable under this
Agreement, other than the license Fee, shall be paid to ICC within ten (10) days
of Licensee's receipt of the invoice. Invoices shall be considered delinquent
ten (10) days after receipt. Any payments received by ICC more than thirty one
(31) days past due shall be subject to any costs of collection (including
reasonable legal fees and costs).
6. Non-Payment. If Licensee fails to pay fees payable to ICC under this
Agreement, ICC reserves the right to repossess the ICC Software without
prejudice, and assert appropriate liens until all amounts due are paid in full.
All past due amounts shall bear interest at the lesser of one and one-half
percent per month and the highest rate allowed by law.
7. Additional User Fee. Licensee shall pay to ICC the Additional User
Fee for each Additional User in excess of the number of Authorized Users. The
Additional User Fee for each
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Additional User shall be due and payable by Licensee and Licensee shall pay the
Additional User Fee before the first use of the ICC Software by each such
Additional User.
8. Term. This Agreement is effective upon the effective date and shall
remain in effect until terminated.
9. Licensee's Obligations. Licensee agrees to adhere to the terms and
conditions of this Agreement and all other agreements between ICC and Licensee.
10. Installation and Training Services. ICC shall provide its standard
installation and training services in accordance with the fees specified in the
Software License Exhibit.
11. Services Provided by Other Agreements. There are no software
maintenance or consulting services provided under this Agreement. Software
maintenance and consulting services are available only pursuant to separate,
written agreements between ICC and Licensee.
LICENSE
12. Grant of License. Subject to the terms and conditions of this
Agreement and for the duration of this Agreement, ICC hereby grants and Licensee
hereby accepts a non-exclusive and non-transferable license to use and possess
the Licensed Materials for the number of Authorized Users specified in the
Software License Exhibit.
13. Export Control. Licensee warrants and represents that it shall in
all ways comply with the export control laws and regulations of the United
States. If Licensee is furnishing the Licensed Materials to its facilities
outside of the United States, Licensee shall obtain all export licenses, fully
adhere to the applicable export control laws and regulations, and indemnify and
hold ICC harmless from and against all claims, liabilities, actions, damages and
expenses (including reasonable attorneys' fees incurred by ICC) arising out of
any failure to comply with such laws and regulations and any breach of this
Agreement by such facilities outside the United States. Further, Licensee
represents and warrants that any of its facilities outside of the United States
to which it provides the Licensed Materials are bound by the provisions of this
Agreement. If at any time the Licensed Materiels are to be located at any
location other than the address designated in the Software License Exhibit,
Licensee shall notify ICC in writing of the street address of such other
location prior to moving the Licensed Materials to such location.
14. Assignment or Transfer. Licensee may assign this Agreement and/or
transfer the Licensed Materials only with the prior, express, and written
consent of ICC, which consent shall not be unreasonably withheld. Any
encumbrance, other transfer, and/or attempt to encumber or transfer shall be
void and of no legal effect and shall constitute a material breach of this
Agreement by Licensee.
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15. Duplication. Licensee shall not make any copies of the Licensed
Materials except that for each Authorized User and each Additional User.
Licensee may make one (1) copy of the ICC Software program and (l) one copy of
the user manual contained in the Support Materials. In addition, Licensee may
make (1) copy of the ICC Software for backup purposes. All such copies shall
include ICC's copyright and other proprietary notices and are subject to the
provisions of this Agreement.
16. Certain alterations Prohibited. Except as expressly provided in the
Paragraph entitled "Permitted Alterations," Licensee shall not alter, modify,
disassemble, decompile, reverse engineer or otherwise manipulate (or attempt to
alter, modify, disassemble, decompile, reverse engineer or otherwise manipulate)
the ICC Software. Licensee shall not translate, update, or make any
Modifications to the ICC Software without the prior, express, and written
consent of ICC, except as otherwise expressly provided in the Paragraph entitled
"Permitted Alterations."
17. Permitted Alterations. Licensee shall have the non-exclusive and
non-transferable right to make Modifications to the Licensed
Database/Templates, but not the IntellAgents-TM- program or any other
portion of the ICC Software or the Licensed Materials; and provided, however,
that the following provisions apply to all Modifications made by Licensee:
a. All such Modifications of the Licensed Database/Templates or any
portion thereof shall be at Licensee's, sole risk and expense, and in no event
shall ICC have any obligation to support or maintain any Modification which is
not distributed by ICC to its general client base and made a part of the
standard ICC Software.
b. ICC shall not be responsible in any regard and shall incur no
liability for any errors, failures or malfunctions of the Licensed
Database/Templates or any other portion of the ICC Software, and Licensee
assumes full responsibility for any and all errors, failures, malfunctions, non-
conformance or other effects arising from Modification(s) made by Licensee.
c. Licensee acknowledges that, by virtue of such Modification(s) made
by Licensee to the Licensed database/Templates, subsequent modifications,
solutions, corrections, improvements, or release of the ICC Software and related
documentation may be rendered unusable or incompatible.
d. The non-exclusive and non-transferable right granted to Licensee in
this Paragraph to make Modifications to the Licensed Database/Templates applies
solely to the Licensed Database/Templates, and shall not apply to the
IntellAgents-TM- program or any other portion of the ICC Software or the
Licensed Materials. The provisions of Subparagraphs a and b of this Paragraph
shall survive termination of this Agreement, but the rights granted to Licensee
in this Paragraph shall terminate upon termination of this Agreement.
18. Acknowledgment of Confidentiality. Licensee hereby acknowledges
that the ICC Confidential Information, code partial copies and derivative works
thereof contain proprietary information belonging exc1usively to ICC Licensee
acknowledges that such ICC Confidential
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Information gives ICC an advantage over competitors in the industry who do not
know or use ICC Confidential Information. Licensee acknowledges that ICC has
expended substantial amounts of time, effort, and money in creating, developing,
and protecting the ICC Confidential Information. Licensee acknowledges that any
publication or disclosure to third parties of ICC Confidential Information would
cause immediate and irreparable harm to ICC.
19. Nondisclosure of ICC Confidential Information. During the Term of
this Agreement and at all times thereafter, Licensee shall not (a)
misappropriate any ICC Confidential Information, or (b) without ICC's prior,
express, and written consent, disclose, provide, or in any way make any ICC
Confidential Information available in any form to any other party, except to
employees of Licensee and consultants who require such knowledge and use in the
ordinary course and scope of their engagement at Licensee and whose access is
necessary to enable Licensee to exercise its rights under this Agreement.
Licensee shall require all employees and consultants having access to any ICC
Confidential Information to agree to maintain the confidentiality of the ICC
Confidential Information. Licensee warrants to ICC that each employee and
consultant having access to the ICC Confidential Information understands, agrees
to be governed, and is bound by the terms and conditions of this Agreement or
one at least as restrictive. The provisions regarding confidentiality and
nondisclosure of the ICC Confidential Information shall survive termination of
this Agreement. Licensee shall take all reasonable steps necessary to maintain
the confidentiality of the ICC Confidential Information and shall use at least a
reasonable standard of care safeguarding it.
20. Injunctive Relief. Licensee acknowledges that violation of the
provisions of the Paragraph entitled "Nondisclosure of ICC Confidential
Information" would cause irreparable harm to ICC not adequately compensable by
monetary damages. Accordingly, in addition to monetary damages and other relief,
the parties agree that injunctive re1ief including, but, not limited to,
specific performance, shall be available to ICC to prevent any actual or
threatened violation of such provisions and is available without the requirement
of posting bond.
INTELLECTUAL PROPERTY
21. Ownership of Intellectual Property Rights. ICC owns all
Intellectual Property Rights in and title to all copies, in whole and in part,
of the Licensed Materials and all derivative works thereof. Licensee shall not
acquire any rights or interest in any of the Intellectual Property by reason of
any use and/or modification of the same in connection with this Agreement. ICC
retains all rights not expressly granted in this Agreement.
22. ICC Trademarks. Licensee agrees and acknowledges that
VERITAS-TM-, INTELLAGENTS-TM- and INTELLAGENT CONTROL-TM- are trademarks of
ICC. All goodwill derived from Licensee's use of ICC's trademarks in
connection with this Agreement shall inure to the benefit of ICC. Licensee
shall not alter, vary or combine ICC's trademarks in any manner. Licensee
shall neither alter nor remove from any Licensed Materials any proprietary,
copyright, trademark or trade secret notice or legend.
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23. Ownership of Modifications. ICC shall own all right, title and
interest, including all Intellectual Property Rights, in and to any
modifications of the Licensed Materials; the provisions in this Section shall
not be deemed to grant to Licensee a right or privilege to make Modifications
except as otherwise expressly permitted in this Agreement. If Licensee makes any
Modifications to the Licensed Materials, Licensee shall be deemed to have
assigned to ICC ownership of all program code and data for such Modifications,
unless ICC and Licensee expressly agree otherwise in a writing that specifically
identifies such Modifications made by Licensee. Licensee retains rights to
Licensee Confidential Information. Nothing in this Section shall limit ICC's
Intellectual Property Rights. So long as this Agreement is in effect, Licensee
shall have a non-exclusive, royalty-free license to use any Modifications made
by Licensee in accordance with the terms of this Agreement. Subject to the
limitations set forth in this Section, ICC's ownership includes, without
limitation, the right to produce, make, use, modify, prepare derivative works,
display publicly, perform publicly, sell, license or otherwise distribute or
dispose of all Modifications.
LIMITATIONS OF LIABILITY
EXCEPT AS EXPRESSLY SET FORTH ABOVE, ICC MAKES NO WARRANTY,
REPRESENTATION, PROMISE, OR GUARANTEE, EITHER EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE, REGARDING THE LICENSED MATERIALS, INCLUDING WITHOUT LIMITATION THEIR
QUALITY, PERFORMANCE, SUITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, AND ICC EXPRESSLY DISCLAIMS ALL WARRANTIES NOT EXPRESSLY STATED HEREIN.
LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE
LICENSED MATERIALS. SHOULD THE LICENSED MATERIALS PROVE DEFECTIVE, LICENSEE AND
NOT ICC ASSUMES THE ENTIRE COST OF NECESSARY SERVICING, REPAIR, OR CORRECTION.
LICENSEE'S SOLE REMEDIES AND THE ENTIRE LIABILITY OF ICC ARE SET FORTH
ABOVE. IN NO EVENT WILL ICC BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY
DAMAGES, INCLUDING ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, EXPENSES,
LOST PROFITS, LOST SAVINGS OR OTHER DAMAGES ARISING OUT OF USE OR INABILITY TO
USE THE LICENSED MATERIALS OR IN ANY WAY RELATING TO THE LICENSED MATERIALS.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR
LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATION MAY NOT APPLY TO LICENSEE.
BECAUSE SOFTWARE IS INHERENTLY COMPLEX AND MAY NOT BE
COMPLETELY FREE OF ERRORS, LICENSEE IS ADVISED TO VERIFY AND MAKE
BACKUP COPIES OF ITS WORK.
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IN NO EVENT SHALL ICC BE LIABLE, IN CONTRACT AND/OR IN TORT, FOR ANY
AMOUNT IN EXCESS OF THE MONIES PAID BY LICENSEE TO ICC PURSUANT TO THIS
AGREEMENT.
TERMINATION
30. Termination. Licensee may terminate this Agreement at any time by
written notice to ICC and returning the Licensed Materials to ICC together with
all copies thereof and extracts or modifications thereof. If Licensee breaches
this Agreement and after written notice of such breach, Licensee fails to cure
within five days, ICC may terminate this Agreement upon written notice to
Licensee. Termination of this Agreement terminates the license granted herein.
Upon termination for any reason whatsoever, Licensee shall immediately cease
using, directly or indirectly, all Licensed Materials and shall promptly return
the Licensed Materials to ICC at Licensee's expense.
31. Survival. The provisions of the following entitled Paragraphs shall
survive termination of this Agreement: "Acknowledgment of Confidentiality,"
"Nondisclosure of ICC Confidential Information," "Injunctive Relief," "Ownership
of Intellectual Property Rights," "ICC Trademarks," "Ownership of
Modifications," "No Warranties for Third Party Software," "Limitation of
LIABILITY," and "Governing Law."
32. No Refund of Fees. Upon termination of this Agreement, ICC shall
have no obligation to refund any fees paid to it for the Licensed Materia1s.
ADDITIONAL PROVISIONS
33. Compliance with System Requirements. Licensee shall not use the ICC
Software other than in conformance with the System Requirements.
34. Infringement. If any third party makes to Licensee a claim or
demand regarding infringement of any copyright or trademark or misappropriation
of any trade secret by reason of Licensee's having used the Licensed Materials
within the scope of the licenses granted herein, Licensee agrees to notify ICC
promptly in writing of the claim or demand.
35. Indemnification. Provided Licensee is not in default of this
Agreement, ICC shall defend and indemnify Licensee from and against all claims
and damages, if any, arising from any alleged infringement by the Licensed
Materials of a U.S. copyright or trademark or the misappropriation of any trade
secrets of any third party (an "Infringement Claim"); provided further: that
Licensee notifies ICC as provided in the Paragraph entitled "Infringement;" that
ICC is permitted to control fully the defense and settlement of such
Infringement Claim; and that Licensee fully cooperates with ICC in the defense
and settlement of such Infringement Claim. Alternatively, ICC may, in its sole
discretion and at ICC's expense, replace the allegedly infringing Licensed
Materials, modify them so that they do not infringe, and/or acquire the right
from the third party to use the allegedly infringing Licensed Materials. ICC
shall have no obligation pursuant to this Paragraph if the
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Infringement Claim arose out of Licensee's use of Licensed Materials with
hardware and/or software, other than the third Party Software, not provided by
ICC.
36. Governing Law. This agreement shall be construed and enforced in
accordance with the laws of the State of Texas, excluding Texas' conflicts of
law, and both parties agree that the Federal and State Courts located in Dallas
County, Texas shall have jurisdiction over any matter arising in connection with
this Agreement and hereby submit to such jurisdiction. Any action against either
party must be commenced within two (2) years after such cause of action accrues.
If any action is brought to enforce this Agreement or any of its terms, the
prevailing party shall be entitled to legal costs, including reasonable
attorneys' fees and costs.
37. Modification, Waiver, Amendment, Etc. This Agreement may be amended
only by a written instrument executed by all parties hereto. The failure of any
party at any time or times to require performance of any provision of this
Agreement by any other party hereto shall in no manner affect the right of such
party at a later time to enforce same. To be effective a waiver must be signed
by the party sought to be charged with the waiver. If any covenant or other
provision of this Agreement is found by a court of competent jurisdiction to be
invalid, unlawful or incapable of being enforced, all other conditions and
provisions of this Agreement which can be given effect without the invalid,
unlawful or unenforceable provision shall, nevertheless, remain in full force
and effect
38. Integration. This Agreement and the Software License Exhibit
constitute the sole, full, and complete Agreement and understanding between
Licensee and ICC with respect to the matters set forth herein, and supersedes
and terminates any and all prior or existing proposals, agreements, or
understandings between Licensee and ICC with respect to such matters.
39. Notices. All notices, requests, demands, instructions and other
communications required or permitted to be given under this Agreement by a party
hereto shall be deemed duly given or sent hereunder only if in writing and
delivered personally, mailed first class, postage prepaid, certified mail,
return receipt requested, sent by Federal Express or similar overnight delivery
service, or sent by facsimile transmission or telex with acknowledgment or
confirmation required thereof, to the other hereto as follows:
If to Licensee to the individual named and the address set forth in the
Software License Exhibit
If to ICC to IntellAgent Control Corporation f/k/a Veritas
Technologies, Inc., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: License Administrator
Any such communication shall be deemed to have been given or sent as of the date
of hand delivery five (5) days after the date of mailing by certified mail; the
business day after the date sent by Federal Express or other similar service; or
the date of acknowledgment of receipt of facsimile or telex transmission, as the
case may be.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
made it effective upon the Effective Date.
Agreed and accepted: Agreed and accepted:
INTELLAGENT CONTROL CORPORATION
(ICC): (Licensee):
By: /s/ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------- ---------------------------
Title: Business Partner Manager Title: Vice President - Operations
------------------------- ---------------------------
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SOFTWARE LICENSE EXHIBIT
Licensee:
Licensee's address:
Notices should be sent to the following person at the above address:
Attn:
Effective Date:
License Fee $____________
Licensed Materials Number of Version
Authorized Users
IntellAgents _________________ _____R4___________
Additional User Fee $_____________
Annual Maintenance fees: $____ per authorized user
$____ Total Annual Maintenance Fee
Unless otherwise expressly agreed to in writing, Licensee shall reimburse ICC
for all travel expenses.
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Agree and accepted: Agreed and accepted:
INTELLAGENT CONTROL (ICC): PRODUCTIVITY POINT CORPORATION
INTERNATIONAL (PPI):
By :__________________________ By :__________________________
Title :_________________________ Title :_________________________
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INTELLAGENT CONTROL CORPORATION
VALUE ADDED RESELLER AGREEMENT
Name and address of Value Added Reseller:
Transformation Processing, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Effective Date: April 23, 1997
This Agreement sets forth the terms under which the Value Added Reseller
identified above may participate in IntellAgent Control Corporation's Value
Added Reseller Program( the "Program"), including the receipt of IntellAgent
Control Corporation products (the "Products") and services.
1. PRODUCTS AND SERVICES AVAILABLE UNDER THE PROGRAM.
(a) Products. Value Added Reseller shall have the right to acquire and use
IntellAgent Control Corporation products made available to Program participants
from time to time, in the quantity and for the prices or fees established by
IntellAgent Control Corporation for Program participants. Value Added Reseller
agrees to use any Product acquired under the Program solely for sales, marketing
and demonstration purposes, as well as general internal business purposes
related to the Products, and not for resale or distribution to third parties.
Value Added Reseller shall be solely responsible for its activities, products
and services relating to or provided with IntellAgent Control Corporation
Products. Value Added Reseller shall not make any representations or statements
regarding Intelligent Control Corporation Products other than those contained in
Intelligent Control Corporation's marketing literature and advertising copy.
Value Added Reseller's other rights and obligations relating to such Products
shall be governed by the IntellAgent Control Corporation Software License
Agreement accompanying the particular Product acquired. Value Added Reseller
shall provide to Intelligent Control Corporation, upon request information
related to Value Added Reseller's involvement in sales of the Products.
(b) Support. Value Added Reseller shall be entitled to receive the
technical support services made available to Program participants from time to
time, including electronic and telephone support, under the terms and conditions
established by IntellAgent Control Corporation.
(c) Marketing services. Value Added Reseller shall be entitled to receive
the marketing services IntellAgent Control Corporation elects to provide from
time to time for its Value Added Resellers.
(d) Program terms subject to change. IntellAgent Control Corporation may
change any of the terms for products or support offered to Program participants
without prior notice to value
Added Reseller, provided, however, that Value Added Reseller shall be permitted
to terminate this Agreement and its participation in the Program without cause
upon any change by IntellAgent Control Corporation in these terms.
2. PRE-RELEASE PRODUCTS
(a) Use. IntellAgent Control Corporation may in its sole discretion extend
to Value Added Reseller the right to use the pre-release software and related
documentation that it makes available under the Value Added Reseller Marketing
Program from time to time (the "Pre-Release Software") solely for the purpose of
evaluating the Pre-Release Software, and subject to the following terms:
(b) Acceptance of terms. Value Added Reseller shall acknowledge its
acceptance of the terms of this Section 2, in the form stipulated by IntellAgent
Control Corporation, prior to receiving any Pre-Release Software under the
Program.
(c) Confidentiality; proprietary rights. Value Added Reseller agrees with
IntellAgent Control Corporation that the Pre-Release Software is IntellAgent
Control Corporation Confidential Information subject to the terms of Section 8
of this Agreement and constitutes a trade secret of IntellAgent Control
Corporation, and that, unless otherwise specifically agreed by IntellAgent
Control Corporation in writing, Value Added Reseller:
(i) shall not copy the Pre-Release Software or the related documentation
in excess of the number designated by IntellAgent Control Corporation
in computer readable or human readable form except for one back-up
copy; and
(ii) shall, at IntellAgent Control Corporation's request, promptly return
to IntellAgent Control Corporation or destroy all diskettes,
documentation or other materials furnished to Value Added Reseller by
IntellAgent Control Corporation under this Agreement.
(d) No Warranty. In view of the developmental nature of Pre-Release
Software, IntellAgent Control Corporation makes no warranty as to the
operational performance of Pre-Release Software. INTELLAGENT CONTROL CORPORATION
DISCLAIMS ALL WARRANTIES WITH REGARD TO PRE-RELEASE SOFTWARE AND THE RELATED
DOCUMENTATION INCLUDING WITHOUT LIMITATION WARRANTY OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE AND NO INFRINGEMENT.
3. PAYMENT TERMS. Unless otherwise stated by IntellAgent Control Corporation,
payments of applicable subscription, license and support fees for the Program
and Products are due upon submission of Value Added Reseller's order form for
the particular Product or service requested. Value Added Reseller agrees to pay
shipping and related insurance charges, as well as any tax, however
characterized, including customs duties and tariffs, arising out of this
Agreement
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or the use of the Products, other than taxes assessed on IntellAgent Control
Corporation's net income.
4. PROPRIETARY RIGHTS. During the terms of this Agreement, Value Added Reseller
may represent itself as an authorized IntellAgent Control Corporation Value
Added Reseller of IntellAgent Control Corporation Products. Value Added Reseller
shall not represent that Value Added Reseller's products and services are
affiliated with or endorsed by IntellAgent Control Corporation.
Nothing done pursuant to this Agreement shall transfer to Value Added Reseller
title to any intellectual property rights (including, without limitation, any
trademark or copyright) in or to IntellAgent Control Corporation Products or any
other software application, or any associated documentation or training
materials, provided to Value Added Reseller by IntellAgent Control Corporation .
Value Added Reseller shall not manufacture, duplicate, translate, reverse
engineer or decompile IntellAgent Control Corporation Products or information
relating thereto.
5. TECHNICAL SUPPORT. From time to time and depending upon the particular
IntellAgent Control Corporation product involved, IntellAgent Control
Corporation may require that Value Added Reseller obtain a certain level of
technical expertise in order to resell or recommend IntellAgent Control
Corporation Products. IntellAgent Control Corporation or its designee shall
offer fee-based periodic training classes in order for Value Added Reseller
personnel to obtain and maintain such technical expertise.
6. LIMITED WARRANTY. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE
APPLICABLE PRODUCT SOFTWARE AGREEMENT AND ELSEWHERE HEREIN, INTELLAGENT CONTROL
CORPORATION DISCLAIMS ALL WARRANTIES WITH REGARD TO PRODUCTS AND SERVICES
RECEIVED UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES 0F
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INDIRECT,
INCIDENTAL, CONSEQUENTIAL, TORT OR COVER DAMAGES, INCLUDING, WITHOUT LIMITATION,
DAMAGES RESULTING FROM THE USE OR INABILITY TO USE THE PRODUCTS, DELAY OF
DELIVERY OR LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL, WHETHER OR NOT SUCH
PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMIT
OF MONETARY DAMAGES AGAINST INTELLAGENT CONTROL CORPORATION UNDER THIS AGREEMENT
SHALL IN NO EVENT EXCEED THE AMOUNTS PAID BY VALUE ADDED RESELLER TO INTELLAGENT
CONTROL CORPORATION UNDER THE VALUE ADDED RESELLER PROGRAM.
8. NONDISCLOSURE AND CONFIDENTIALITY AGREEMENT. IntellAgent Control Corporation
("IntellAgent Control Corporation ") possesses valuable information and
technical
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experience of a secret and confidential nature relating to IntellAgents and
IntellAgent Control. This information ("IntellAgent Control Corporation
Confidential Information") is a commercial asset of considerable value to
IntellAgent Control Corporation and IntellAgent Control Corporation is willing
to disclose and permit disclosure of IntellAgent Control Corporation
Confidential Information to the undersigned individual and to the business
entities represented by him/her (collectively 'Value Added Reseller') for
evaluation purposes and with a view toward entering into a subsequent business
relationship only on the condition that the Value Added Reseller will not
disclose or make use of in any manner the IntellAgent Control Corporation
Confidential Information except under the conditions set forth below:
(a) IntellAgent Control Corporation Confidential Information shall mean
trade secrets, knowledge, data or other proprietary information of IntellAgent
Control Corporation not generally known to the public and identified as
confidential by IntellAgent Control Corporation. IntellAgent Control Corporation
Confidential Information includes inventions trade secrets, ideas, processes,
formulae, flow charts, design specifications, source and object code, data,
programs, documentation, unpublished works of authorship, know-how,
improvements, discoveries, developments, designs and techniques, including,
without limitation, all code, parameter files, executable files, and other files
constituting a part of IntellAgents(TM), along with the design, layout and
operation of the IntellAgent Control database. IntellAgent Corporation
Confidential Information does not include (i) Information already known or
independently developed by the Value Added Reseller; (ii) information in the
public domain through no wrongful act of the Value Added Reseller, or (iii)
information received by the Value Added Reseller from a third party who was free
to disclose it.
(b) Value Added Reseller shall not communicate IntellAgent Control
Corporation Confidential Information to any third party and shall take all
reasonable steps to prevent inadvertent disclosure of IntellAgent Control
Corporation Confidential Information to any third party.
(c) Value Added Reseller shall limit dissemination of IntellAgent Control
Corporation Confidential Information to persons involved in the evaluation of
IntellAgent Control Corporation Confidential Information. Value Added Reseller
represents and warrants that any person involved in the evaluation on Value
Added Resellers behalf is either under contract to Value Added Reseller not to
disclose any information received from Value Added Reseller, or will become
obligated to Value Added Reseller prior to receiving IntellAgent Control
Corporation Confidential Information.
(d) Value Added Reseller shall not, without IntellAgent Control
Corporation's prior consent to disclose to any third Party that IntellAgent
Control Corporation and Value Added Reseller are discussing a potential business
relationship or the nature of IntellAgent Control Corporation' interest in a
proposed business relationship with Value Added Reseller.
(e) The obligations of paragraphs 1-2 hereof shall terminate with respect
to IntellAgent Control Corporation Confidential Information only.
(i) When Value Added Reseller can document that:
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A. IntellAgent Control Corporation Confidential Information was in
the public domain at the time of IntellAgent Control Corporation
Communication thereof to Value Added Reseller;
B. IntellAgent Control Corporation Confidential Information entered
the public domain through no fault of Value Added Reseller;
C. IntellAgent Control Corporation Confidential Information was in
Value Added Resellers possession free of any obligation of
confidence at the time of IntellAgent Control Corporation
Communication thereof to Value Added Reseller;
D. IntellAgent Control Corporation Confidential Information was
rightfully communicated to Value Added Reseller free of any
obligation of confidence;
E. IntellAgent Control Corporation Confidential Information was
developed by Value Added Reseller, employees or agents of Value
Added Reseller independently of and without reference to any
IntellAgent Control Corporation Confidential Information or other
information that IntellAgent Control Corporation has disclosed in
confidence to any third party; or
F. IntellAgent Control Corporation Confidential Information is
apparent by inspection of publications marketed without
restriction by IntellAgent Control Corporation, Value Added
Reseller or others in the ordinary course of business;
(ii) In any event, ninety-nine (99) years after IntellAgent Control
Corporation' communication thereof to Value Added Reseller, after
which time IntellAgent Control Corporation will rely on whatever
rights it may obtain under the patent and copyright laws for
protection of any information communicated to the undersigned.
(f) All IntellAgent Control Corporation Confidential Information shall
remain the property of IntellAgent Control Corporation and shall be returned to
IntellAgent Control Corporation promptly at its request together with all copies
thereof made by Value Added Reseller during the evaluation process and all work
papers generated by Value Added Reseller during the evaluation process.
(g) This Agreement shall govern all communications relating to IntellAgent
Control Corporation that are made after the date this Agreement was signed, and
shall continue until either party receives from the other written notice that
subsequent communications shall not be governed.
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(h) Value Added Reseller acknowledges that violation of any of the
provisions of this document would cause irreparable harm to IntellAgent Control
Corporation . Therefore, in addition to monetary damages and other relief, the
parties agree that injunctive relief shall be available to IntellAgent Control
Corporation to prevent any actual or threatened violation of such provisions.
(i) This Agreement shall be construed in accordance with the laws of the
State of Texas, U.S.A. and venue for any action arising out of or under this
Agreement shall be in the courts of Dallas County, Texas.
(j) The undersigned represents that he is authorized to execute this
Agreement on behalf of Value Added Reseller.
(k) No Disclosure. During the term of this Agreement and for a period of
three (3) years thereafter, neither IntellAgent Control Corporation nor Value
Added Reseller shall disclose to any third party and Value Added Reseller may
not use except as permitted under this Agreement any information of the other
party identified as confidential or proprietary at the time of disclosure and,
if disclosed orally, confirmed in writing by the disclosing party as such
promptly after its disclosure ("Information"), without the prior written consent
of the other party and then only to the extent specified in such consent. The
parties shall limit access to the information of the other to those employees
and independent contractors who have entered into appropriate confidentiality
agreements and shall ensure compliance with the terms of such agreements.
Information may be copied and disseminated within the receiving party's own
organization only to the extent reasonably required for the purposes hereof.
(l) Exceptions. The restrictions on disclosure of Information described in
Paragraph 8(a) do not extend to any items of information which (i) is publicly
known at the time of its disclosure, (ii) is lawfully received by the receiving
party from a third party not bound in a confidential relationship to the
disclosing party, (iii) is published or otherwise made known to the public by
the disclosing party, or (iv) was generated or developed independently before
its receipt from the disclosing party. Either party may disclose information to
the extent required by law provided that the party so required must give the
other party prompt notice and make a reasonable effort to obtain a protective
order.
(m) Electronic connections. Value Added Reseller acknowledges that
IntellAgent Control Corporation maintains electronic connection and
communications with third parties similar to those maintained with Value Added
Reseller; however, Value Added Reseller acknowledges and agrees that only direct
electronic communications with IntellAgent Control Corporation are permitted
under this Agreement and any use of said electronic connections to communicate
with said third parties is expressly prohibited and constitutes a material
breach of this Agreement.
9. ASSIGNMENT. This Agreement is not assignable and the duties hereunder are not
delegable by Value Added Reseller. Except as set forth herein, nothing in this
Agreement shall be
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construed as granting to Value Added Reseller the right to sell, distribute to
third parties, lease, license or otherwise transfer or dispose of the products
in whole or in part.
10. NOTICES. Any notice hereunder shall be deemed to be sufficiently given and
any delivery hereunder deemed made when delivered in person or sent by facsimile
(followed by written confirmation) or by registered or certified mail or courier
addressed to the Value Added Reseller at the address stated above and to
IntellAgent Control Corporation at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, or at such changed address as either party shall have specified by
written notice.
11. ENTIRE AGREEMENT; RELATIONSHIP OF PARTIES. This Agreement and the
IntellAgent Control Corporation Software Agreements and other documents, such as
acknowledgments, referred to herein, set forth the complete and exclusive
agreement and understanding between the parties as to the subject matter hereof
and are in lieu of and supercede all other communications, understandings and
agreements, whether written or oral, prior or contemporaneous. Any waiver,
amendment or modification of this Agreement will not be effective unless
contained in a writing signed by the party or parties to be bound, and any
variance from or addition to the terms of this Agreement contained in any Value
Added Reseller purchase order or other written notification will be of no
effect. The invalidity in whole or in part of any provision of this Agreement
shall not void or affect the validity of any other provision hereof. The parties
hereto are independent contractors and neither party shall have the right to
bind the other to any agreement with a third party nor to represent itself as an
agent, partner or joint venturer of the other or to incur any obligation or
liability on behalf of the other party. Each party shall be responsible for the
acts, negligence and omissions of its employees, agents, representatives and
subcontractors. If any provision of this Agreement is held to be contrary to law
or public policy or otherwise unenforceable, the remaining provisions shall
remain in full force and effect, and the invalid provision shall remain in force
as reformed.
12. GOVERNING LAW. This Agreement shall be governed by the laws of the State of
Texas without regard to its conflicts of law rules.
13. EXPORT; COMPLIANCE WITH LAW. The export, distribution and disclosure of the
Products and any Pre-Release Software are subject to United States Export
Administration Regulations. The export of the North American Edition of
IntellAgents is controlled by the U.S. Department of State.
14. TERMS AND TERMINATION; SURVIVAL
(a) Term. This Agreement shall have a term of one year from the date given
below and shall automatically renew for successive one-year terms, subject to
earlier termination as set forth below.
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(b) Termination
(i) Termination without cause: Either party may terminate this Agreement
without cause upon ninety (90) days prior written notice to the other
party.
(ii) Termination upon breach: Either party may terminate the Agreement
fourteen (14) days after written notice of material breach of this
Agreement if such breach is not cured within such period.
(c) Actions upon termination. Upon expiration or termination of this
Agreement, Value Added Reseller shall immediately return all copies of Products,
Pre-Release Software and documentation provided by IntellAgent Control
Corporation under this Agreement, destroy any additional copies made by Value
Added Reseller and certify in writing that such actions have been taken. Upon
expiration or termination of this Agreement each party shall return to the other
any information, including any copies thereof, together with a letter certifying
that all such information has been returned. Value Added Reseller shall not be
entitled to a refund of any amounts paid for Products or services received under
or in connection with this Agreement upon the expiration or termination of this
Agreement.
(d) Surviving Sections. The provisions of Section 2(c), 2(d), 6, 7 and 8 of
this Agreement shall survive any termination of this Agreement for any reason.
INTELLAGENT CONTROL CORPORATION VALUE ADDED RESELLER
By: /s/ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇. ▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: ___________________________ Title: Vice President - Operations
Date: ___________________________ Date: April 15, 1997
Return to:
IntellAgent Control Corporation
Authorization Programs
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ FAX:(▇▇▇) ▇▇▇-▇▇▇▇
9800) ▇▇▇-▇▇▇▇
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RESELLER ADDENDUM TO
THE INTELLAGENT CONTROL CORPORATION
VALUE ADDED RESELLER AGREEMENT
IntellAgent Control Corporation Value Added Reseller Name and Address:
Authorization Programs
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Transformation Processing Inc.
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Road
Dallas, TX 75251-1241 Suite 200
Phone: (▇▇▇)▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Effective Date: April 23, 1997 Attention: ▇▇▇▇ ▇▇▇▇▇
Authorization: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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This Reseller Addendum to the IntellAgent Control Corporation Value Added
Reseller Agreement (the Agreement") sets forth the terms and conditions under
which IntellAgent Control Corporation Authorize the Value Added Reseller
identified above (Value Added Reseller') to resell the IntellAgent Control
Corporation products identified on Attachment A (the "IntellAgent Control
Corporation Products"). This Addendum supplements the terms of the Agreement.
1. APPOINTMENT AND DISTRIBUTION RIGHTS. IntellAgent Control Corporation hereby
authorizes Value Added Reseller, on a non-exclusive and nontransferable basis,
to market and distribute the IntellAgent Control Corporation Products in the
United States to its customers (referred to herein as "End Users") subject to
the terms and conditions of this Addendum, the Agreement and the terms of the
Value Added Reseller Program, as they are made known to Value Added Reseller in
writing by IntellAgent Control Corporation from time to time. Such authorization
may be suspended by IntellAgent Control Corporation during any period in which
Value Added Reseller is past due on any amounts owing to IntellAgent Control
Corporation.
2. END USER SOFTWARE AGREEMENT. Value Added Reseller shall deliver to each End
User the IntellAgent Control Corporation Software license Agreement accompanying
the IntellAgent Control Corporation Products purchased by Value Added Reseller.
3. PURCHASE OF INTELLAGENT CONTROL CORPORATION PRODUCTS. Value Added Reseller
shall acquire IntellAgent Control Corporation Products only from IntellAgent
Control Corporation. The terms of purchase shall be determined between Value
Added Reseller and IntellAgent Control Corporation. IntellAgent Control
Corporation will endeavor to provide Value Added Reseller with thirty (30) days
prior written notice of changes to the Suggested Retail Price (SRP") of
IntellAgent Control Corporation Products. On or before the tenth of each month,
Value Added Reseller shall forward to IntellAgent Control Corporation at the
address above information reasonably requested by IntellAgent Control
Corporation regarding sales of IntellAgent Control
Corporation Products made by Value Added Reseller timing the previous month.
IntellAgent Control Corporation shall maintain the confidentiality of such
information in accordance with the terms of the Agreement. IntellAgent Control
Corporation reserves the right to modify and/or discontinue IntellAgent Control
Corporation Products at any time. IntellAgent Control Corporation also reserves
the right to modify the SRP of IntellAgent Control Corporation Products at any
time.
4. MAINTENANCE. Depending upon the particular product configuration and
availability from IntellAgent Control Corporation, Value Added Reseller may
offer End Users the option of purchasing future upgrades of IntellAgent Control
Corporation Products on an annual basis ("maintenance") or purchasing upgrades
to IntellAgent Control Corporation Products as they become available from time
to time. Value Added Reseller purchase such offerings from IntellAgent Control
Corporation. When providing upgrades to any End User that has not purchased
Maintenance, Value Added Reseller shall collect satisfactory proof of such End
Users ownership of IntellAgent Control Corporation Products. Value Added
Reseller shall keep all such proofs of ownership on its premises for a period of
one (1) year from the date of sale and make such proofs of ownership available
to IntellAgent Control Corporation for inspection during normal business hours.
5. WARRANTIES. For a period of sixty (60) days following receipt of any
IntellAgent Control Corporation Products by Value Added Reseller, IntellAgent
Control Corporation warrants to Value Added Reseller that the media,
documentation and packaging shall not contain any physical defects in
workmanship or material. During the warranty period IntellAgent Control
Corporation shall at its option and expense, repair or replace any defective
IntellAgent Control Corporation Products product or refund to Value Added
Reseller any amounts paid therefore. The foregoing remedies constitute Value
Added Reseller's sole and exclusive remedies for breach of warranty. This
warranty is made to Value Added Reseller separate and apart from any warranty
IntellAgent Control Corporation makes to an End User in the IntellAgent Control
Corporation Software Agreement.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5, INTELLAGENT CONTROL CORPORATION
MAKES NO WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. INDEMNIFICATION. IntellAgent Control Corporation shall indemnify and hold
Value Added Reseller harmless from and against and defend any claim suit or
proceeding, and pay any settlement amounts or damages awarded by a court of
final jurisdiction arising out of claims by third parties that a IntellAgent
Control Corporation Product infringes any United States copyright or patent,
provided that Value Added Reseller promptly notifies IntellAgent Control
Corporation in writing of any such claim, suit or proceeding, permits
IntellAgent Control Corporation to control the defense or settlement thereof and
cooperates in the defense or settlement thereof. Value Added Reseller shall have
the right at its option to be represented by counsel at its own expense.
IntellAgent Control Corporation shall have the right to demand the return from
Value Added Reseller of any inventory of IntellAgent Control Corporation
Products which is the subject of a
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claim of infringement and to credit Value Added Reseller the net amount paid
therefore. Upon notice, Value Added Reseller shall discontinue distribution of
any IntellAgent Control Corporation Product which is subject of a claim of
infringement. IntellAgent Control Corporation shall have no obligation under
this section with respect to any claim of infringement of proprietary rights
based upon any modification of IntellAgent Control Corporation Products by Value
Added Reseller or the combination, operation or use of IntellAgent Control
Corporation Products with materials not supplied by IntellAgent Control
Corporation if such infringement would not have occurred without such
modification, combination, operation or use.
7. SURVIVAL. The provisions of Sections 5 and 6 shall survive the termination or
expiration of this Addendum.
IN WITNESS WHEREOF, the parties have caused this Addendum to be executed by
their duly authorized representatives as of the Effective Date.
INTELLAGENT CONTROL CORPORATION VALUE ADDED RESELLER
By: /s/ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇. ▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Title: Vice President Operations
--------------------------
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