BLACKBOARD TRANSACTION SYSTEM(TM) BUILDING BLOCKS DEVELOPER'S LICENSE AGREEMENT
(TRANSACTION INTEGRATION AGENT)
THIS AGREEMENT is made and entered into as of _____________, 2004 (the
"Effective Date"), by and between Blackboard Inc., a Delaware corporation having
an address at 0000 X Xxxxxx, XX, 0xx Xxxxx, Xxxxxxxxxx, XX 00000 ("Blackboard"),
and Sequiam having an address at 000 Xxxxxxx Xxxx, Xxxxxxx, XX 00000 (the
"Developer"), (Blackboard and Developer, each a "Party" and together, the
"Parties").
EXPLANATORY STATEMENT
Blackboard has developed the Blackboard Transaction System(TM) software to
enable institutions to provide networked vending, commerce and access for their
users through cards and computers.
Developer agrees that it is entering into this Agreement to initiate efforts
towards developing an Integration Agent (as defined below) which provides a
value added benefit to Blackboard's software, platform or end-user experience
(the "Purpose"). Any effort that is not compatible with the foregoing will be
considered a violation of this Agreement. In connection with the Purpose,
Developer will receive access from Blackboard to a secure website that shall
include, among other features, online forums and user groups (the "Developer's
Network"). Developer agrees to abide by all applicable laws in connection with
its participation on such website and in online forums and user groups.
Developer desires to participate as a Blackboard Building Blocks Developer on
the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the following mutual covenants and
agreements and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
1 DEFINITIONS
1.1 "Agreement" means this Agreement and the Exhibits attached hereto, as
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the same may be amended from time to time.
1.2 "Blackboard Enabled" means a third party product or service that has an
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Integration Agent which allows it to integrate into a Customer's Software
installation and which has passed compatibility testing conducted by Blackboard
or a third party designated by Blackboard.
1.3 "Confidential Information" means any non-public information about a
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Party, including, without limitation, the Party's business, vendors, customers,
products, services, employees, finances, costs, expenses, financial or
competitive condition, policies, and practices, computer software programs and
programming tools and their respective design, architecture, modules,
interfaces, databases and database structures, nonliteral elements, capabilities
and functionality, source code and object code, research and development
efforts, marketing and distribution efforts, licensing, cross-licensing,
marketing and distribution practices; computer software programs and other
information licensed or otherwise disclosed to a Party in confidence by a third
party, and any other non-public information that does or may have economic value
by reason of not being generally known.
1.4 "Customers" means those persons, organizations or entities that have
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licensed from Blackboard one or more components of the Software.
1.5 "Derivative Work(s)" means a work which is based upon, refers to or
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makes use of one or more preexisting works, in part or in whole, such as a
revision, modification, translation, abridgement, condensation, expansion, or
any other form in which the preexisting work may be recast, transformed, or
adapted, and which, if prepared without authorization of the owner of the
preexisting work, would constitute a copyright infringement.
1.6 "Developer's Network Information" means the sample software code
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developed by Blackboard pursuant to the Developer's Network, related
documentation and other proprietary information made available to Developer as a
result of this Agreement.
1.8 "Integration Agent" means the software application program that (i) is
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designed to operate in combination and integrate, seamlessly and easily, with
the Software (ii) contains functionality authored or created by Developer or on
Developer's behalf and not contained in the Software, and (iii) does not
incorporate any part of the Software or otherwise constitute a Derivative Work
of the Software
1.9 "Marks" means the trademark, service marks, trade name or logos provided
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by a Party to the other for use in connection with this Agreement.
1.10 "Materials" means all memoranda, reports, notes, records, drawings,
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manuals, disks, presentations, marketing materials, sales presentations,
speeches, proposals, or other documents and media (including all drafts, copies,
abstracts, extracts, and summaries thereof) of a Party.
1.11 "Specifications" means the technical specifications for the Software as
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set forth in the applicable Developer's Network Information.
1.12 "Software", solely for the purposes of this Agreement means the
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Blackboard Transaction System(TM) software for both Unix and Windows, Blackboard
Building Blocks Manager(TM) software, and Supported Interfaces (and any
documentation and help files included within such software), as well as any
additional materials that Blackboard may, in its sole discretion, provide, such
as corrections, updates and Upgrades. Blackboard shall have no obligation to
provide such additional materials, and any such additional materials that it
does provide shall be deemed "Software" under this Agreement.
1.13 "Supported Interfaces" means application programming interfaces
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("API"), network protocols, data formats, database schemas, and file formats
used in the Software as described in the Developer's Network Information.
1.14 "Taxes" shall mean any federal, state, municipal or other governmental
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taxes, fees, tariffs or duties, including income, franchise, excise, sales, use,
gross receipts, value added, goods and property or similar tax, now or hereafter
imposed on Developer or required to be collected by Developer in connection with
the sales of Developer products and which Developer is obligated to collect or
remit to any such taxing authority (but excluding taxes payable by Developer on
its own net income).
1.15 "Upgrades" mean the object code versions of the Software that have been
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customized, enhanced, or otherwise modified by or on behalf of Blackboard,
acting in its sole discretion, to include additional functionality and that has
been released with a version number that differs from that of the prior version
in the number to the left of the decimal point (e.g., 3.0 vs. 2.0).
2 OBLIGATIONS
2.1 General. Developer shall use the Software to develop the Integration
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Agent(s), which can be distributed as a separate item and installed by a
Developer and is designed to improve Blackboard's Software or system or user
experience.
2.2 Blackboard Obligations.
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2.2.1 Blackboard shall provide Developer with access to the
Developer's Network Information.
BLACKBOARD TRANSACTION SYSTEM(TM)
BUILDING BLOCKS DEVELOPER'S LICENSE AGREEMENT Page 1
2.2.2 Blackboard shall provide compatibility testing, either directly
or on a subcontracted basis, for the Integration Agent upon completion
of the Integration Agent and notification to Blackboard. Upon the
Integration Agent's satisfaction of the compatibility testing
criteria, Blackboard shall notify Developer (the "Compatibility
Notice") and permit Developer to use the "Blackboard Enabled" xxxx in
accordance with the usage guidelines in effect from time to time. If
the Integration Agent materially fails to satisfy the compatibility
testing criteria, Blackboard shall provide Developer with a report
detailing the areas in which the Integration Agent failed, and
Developer may not use the "Blackboard Enabled" Xxxx for any purpose.
Developer shall correct the errors that resulted in the failure,
resubmit the Integration Agent for compatibility testing, which shall
follow the same procedures set forth above.
2.3 Developer Obligations
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2.3.1 Developer agrees and represents that it shall develop the
Integration Agent(s) to enable simple installation of the Integration
Agent(s) and integration into the Software, as installed by a
Developer, and to provide an added benefit to the Software,
Blackboard's system or the end-user's experience.
2.3.2 Developer shall provide customer support to Customers using and
installing the Integration Agent. Developer shall be solely
responsible for providing all end-user support for any Integration
Agent.
2.3.3. Developer shall provide to Blackboard access to Developer's
development staff for questions and support of the Integration
Agent(s).
2.3.4 Prior to permitting a third party to resell, distribute or
bundle the Integration Agent, Developer shall provide Blackboard a
right of first refusal to resell, distribute and bundle the
Integration Agent based upon mutually agreeable terms which shall be
no worse than the most favorable terms granted to such third party.
3 LICENSES
3.1 Developers' Network Information Grant. Solely in connection with the
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Purpose of this Agreement as set forth in the preamble above, Blackboard hereby
grants to Developer, and Developer hereby accepts from Blackboard, a limited,
nonexclusive, nontransferable right and license to download, review and use the
Developer's Network Information. Developer may use the Developer's Network
Information solely in connection with its own internal development purposes in
connection with the Purpose of this Agreement as set forth in the preamble
above. Developer may copy the Developer's Network Information, or any portion
thereof, in whole or in part only for the purposes set forth in preamble above.
3.2 Developer License Grant. Solely in connection with the Program,
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Developer hereby grants to Blackboard, and Blackboard hereby accepts from
Developer, a nonexclusive, worldwide, fully paid-up irrevocable and perpetual
right and license to use the Integration Agent provided to Blackboard by
Developer for the sole purpose of compatibility testing. No right is granted to
distribute all or any portion of the Integration Agent. Blackboard may only
make copies of the Integration Agent for its own internal purposes, but
otherwise may not copy, duplicate or reproduce the Integration Agent in any
manner.
3.3 No Other Rights Granted. Apart from the licenses expressly granted in
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Sections 3.1 and 3.2 , no license or other right are granted by either party to
the other under this Agreement.
3.4 Nondisclosure and Nonuse. Developer shall treat the Developer's Network
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Information as strictly confidential, and shall use the same care to prevent
disclosure of such information as such Party uses with respect to its own
confidential and proprietary information, which shall not be less than the care
a reasonable person would use under similar circumstances.
3.5 Restrictions. Developer shall not (a) modify, decompile, disassemble,
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decrypt, extract, or otherwise reverse engineer the Software or any part
thereof, or grant any other person or entity the right to do so or take any
action that would assist any other person or entity in doing so and will
promptly notify Blackboard of any information that any other person or entity is
or is attempting to copy, reverse engineer, disassemble, decompile, translate or
modify the Software; (b) modify, insert, delete, replace, change, prepare
derivative works of or otherwise alter any files in the Software; (c) loan,
rent, lease, give, sublicense, distribute, transfer, publish, disclose, display,
or otherwise make available the Software, in whole or in part, to any other
person or entity except as expressly permitted herein; (d) use the Software in
connection with the development of any products other than the Integration
Agent(s) or (e) transmit the Software over a network or from one computer to
another (other than on a limited basis within Developer's local area network),
or upload the Software to electronic bulletin boards, web sites, or otherwise
distribute them (or any portion), whether electronically, or on tangible media.
4 MARKETING
4.1 License for Marks. Contingent upon the requirements set forth in this
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Section 4, each Party hereby grants to the other Party a limited, nonexclusive,
royalty-free license to use such Party's Marks, provided that each Party: (a)
does not create a unitary composite xxxx involving a Xxxx of the other Party
without the prior written approval of such other Party and (b) displays symbols
and notices clearly and sufficiently, indicating the trademark status and
ownership of the other Party's Marks in accordance with applicable trademark law
and practice. Developer's use of the Blackboard Marks shall be limited to the
Blackboard Building Blocks(TM) logo and the Blackboard corporate logo, used in
accordance with the Blackboard trademark style guide.
4.2 Press Releases. Any news release, public announcement, marketing
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materials, advertisement or publicity proposed to be released by either Party
concerning the activities of either Party in connection with this Agreement,
including the Integration Agent, will be subject to the written approval of the
other Party prior to release. Any such publicity will give due credit to the
contribution of each Party.
4.3 Marketing Costs. Any costs of promotion and marketing shall be borne
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solely by the respective Party, and nothing in this Agreement shall be
interpreted to require promotion of products or services through marketing media
forms which either Party normally charges a fee to provide.
4.4 Marketing Materials. Each Party will submit to the other Party for its
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prior written approval, which shall not be unreasonably withheld, any Materials
to be used in connection with performing its obligations or rights under, or
related to, this Agreement, including but not limited to business card, website
or jewel case design, that incorporates any of the other Party's Marks. Any use
of the phrase "Blackboard Enabled" shall be contingent upon becoming Blackboard
Enabled and signing an agreement with Blackboard to use such phrase.
4.5 Quality Standards. Each Party agrees that the nature and quality of its
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products and services supplied in connection with the other Party's Marks shall
conform to quality standards communicated in writing by the other Party for use
of its Marks. Each Party agrees to supply the other Party, upon request, with a
reasonable number of samples of any Materials publicly disseminated by such
Party which utilize the other Party's Marks. Each Party shall comply with all
applicable laws, regulations and customs and obtain any required government
approvals pertaining to use of the other Party's Marks.
4.6 Infringement Proceedings. Each Party agrees to promptly notify the other
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Party of any unauthorized use of the other Party's Marks of which it has actual
knowledge. Each Party shall have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party,
at such other Party's expense, with its reasonable cooperation and assistance
with respect to any such infringement proceedings.
BLACKBOARD TRANSACTION SYSTEM(TM)
BUILDING BLOCKS DEVELOPER'S LICENSE AGREEMENT Page 2
5. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
5.1 Ownership of Blackboard Intellectual Property. Except as specifically
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set forth in this Agreement, no title to or ownership of any portion of the
Developer's Network Information or Software as well as any other products or
services manufactured, sold and/or distributed or otherwise made available by
Blackboard, or to any proprietary rights related to those products/services, is
transferred pursuant to or by virtue of this Agreement and all rights and
interest to the foregoing shall remain the sole and exclusive property and
proprietary information of Blackboard.
5.2 Ownership Rights in Derivative Works. All Derivative Works of the
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Software (including but not limited to the Software as well as integrations and
customizations of the Software developed by Blackboard or Developer) shall be
owned exclusively by Blackboard. All Derivative Works shall be deemed to be
"works made for hire." To the extent that title to the Derivative Works does
not, by operation of law, vest in Blackboard or the Derivative Works are not
considered "works made for hire," Developer hereby irrevocably assigns all
right, title and interest therein to Blackboard. Blackboard, however, shall
grant and hereby grants to Developer a nonexclusive, royalty-free, world-wide,
license to use any such Derivative Works for the purposes set forth in this
Agreement during the Initial Term and any subsequent Renewal Terms. In the event
that Blackboard permits Developer in writing to use non-employees to perform the
obligations of Developer under this Agreement, Developer shall take all
necessary action to secure on behalf of Blackboard all rights to the Derivative
Works from such non-employees.
5.3 Ownership Rights in Non-Derivative Works. To the extent that the
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Integration Agent does not contain or constitute Derivative Works of the
Software or other Blackboard intellectual property, the Integration Agent shall
be owned exclusively by Developer.
6 TERM
6.1 Initial Term. The initial term of this Agreement will be one (1) year
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commencing on the Effective Date (the "Initial Term"). Unless either Party
provides written notice to the other Party within thirty (30) days prior to the
end of the Initial Term, the Agreement shall be automatically renewed on a
year-to-year basis for successive terms of one (1) year (each, a "Renewal
Term"). Thereafter, either Party may terminate this Agreement by providing
written notice to the other Party no later than thirty (30) days prior to the
end of such one (1) year term.
6.2 Termination. Either Party may, at its option, terminate this Agreement
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if a material default by the other Party is not cured or waived within thirty
(30) days after receipt of a written notice of the default. Notwithstanding the
foregoing, Blackboard may terminate this Agreement immediately by written notice
in the event of a breach of Sections 3, 4, or 7 herein. Either Party may
terminate this Agreement immediately following written notice to the other Party
if the other Party (a) ceases to do business in the normal course, (b) becomes
or is declared insolvent or bankrupt, (c) is the subject of any proceeding
related to its liquidation or insolvency (whether voluntary or involuntary),
other than a reorganization under Chapter 11 of the Bankruptcy Code, which is
not dismissed within ninety (90) calendar days, or (d) makes an assignment for
the benefit of creditors
6.3 Rights and Obligations upon Termination. Termination of this Agreement
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shall not relieve either Party of any obligation or liability accrued hereunder
prior to or in connection with such termination, except as expressly provided
herein. In the event that the Agreement is terminated for any reason, both
Parties will have ninety (90) days from the date notice is given of the
termination prior to termination becoming effective. Upon termination of this
Agreement, and to the extent that Developer has received any physical copies of
the Software, Developer shall deliver to Blackboard all copies of the Software
for which licenses do not remain in force. Each Party shall also return any
Confidential Information as well as any copies of marketing materials of the
other Party it has in its possession. In addition, the Parties shall use
commercially reasonable efforts to conclude existing projects in a manner that
serves the best interests of Blackboard's Customers, at Blackboard's reasonable
determination.
7 CONFIDENTIALITY
7.1 Nondisclosure and Nonuse. Each Party receiving Confidential Information
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(the "Receiving Party") from the disclosing Party (the "Disclosing Party"),
including but not limited to, Materials containing Confidential Information
shall (a) disclose such Confidential Information to only those directors,
officers, employees and agents of such Party (i) whose duties justify their need
to know such information and (ii) who have been clearly informed of their
obligation to maintain the confidential, proprietary and/or trade secret status
of such Confidential Information; and
(b) use such Confidential Information only for the purposes set forth in this
Agreement. Each Receiving Party shall treat Confidential Information as
strictly confidential, and shall use the same care to prevent disclosure of such
information as such Party uses with respect to its own confidential and
proprietary information, which shall not be less than the care a reasonable
person would use under similar circumstances. Notwithstanding the foregoing, a
Receiving Party may disclose Confidential Information to the extent necessary
pursuant to applicable federal, state or local law, regulation, court order, or
other legal process, provided that the Receiving Party has given the Disclosing
Party prior written notice of such required disclosure and, to the extent
reasonably possible, has given the Disclosing Party an opportunity to contest
such required disclosure at the Disclosing Party's expense.
7.2 Notice. The Receiving Party will notify the disclosing Party immediately
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in the event the Receiving Party learns of any unauthorized possession, use or
knowledge of the Confidential Information and/or Materials containing
Confidential Information and will cooperate with the Disclosing Party (at the
Disclosing Party's cost and expense) in any litigation against any third persons
necessary to protect the Disclosing Party's rights with respect to the
Confidential Information and Materials.
7.3 Confidential Treatment of Agreement. Subject to Section 5.1, any news
release, public announcement, advertisement or publicity proposed to be released
by either Party concerning the activities of either Party in connection with
this Agreement shall be subject to the good faith approval of the other Party
prior to release, which approval shall not be unreasonably withheld. Any such
publicity shall give due credit to the contribution of each Party. Except for
such releases, neither Party shall disclose the terms of this Agreement to any
third party; provided, however, that either Party may disclose the terms of this
Agreement to its affiliates, their professional advisors, board of directors or
advisory board members or to any potential investor or acquiror of a substantial
part of such Party's business (whether by merger, sale of assets, sale of stock
or otherwise) that is bound by a written agreement to keep such terms
confidential, or as may be required by law.
7.4 Treatment of Confidential Information Upon Termination. Immediately
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upon termination, each Party shall turn over all Confidential Information of the
other Party and all documents or media containing any such Confidential
Information and any and all copies or extracts thereof to the other Party, or,
if appropriate, attest to the destruction of such Confidential Information.
8 FEES AND PAYMENTS
8.1 Fees. Developer shall pay Blackboard the annual program fee per
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interface set forth on Exhibit A on the Effective Date for the first year
participation in the Program and pay the then applicable amount charged by
Blackboard, in its sole discretion, on the anniversary of the Effective Date for
each subsequent year that the Developer uses the Developers' Network Information
to develop an Integration Agent or offers and/or supports the Integration Agent
for use by Customers.
8.2 Payment. Blackboard or its subcontractor shall submit an invoice to
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Developer and Developer's payments shall be due and payable to the invoicing
Party within thirty (30) days after receipt of the invoice, to the payment
address listed on the invoice. Developer will pay all fees in U.S. dollars,
unless otherwise specified on the applicable Blackboard-issued invoice.
8.3 Late Fees. Blackboard may charge interest on any overdue amounts at the
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rate of eighteen percent (18%) per annum or the maximum rate permitted by
applicable law, whichever is less, from the date on which such amount became due
until the date of payment, whether before or after judgment.
BLACKBOARD TRANSACTION SYSTEM(TM)
BUILDING BLOCKS DEVELOPER'S LICENSE AGREEMENT Page 3
8.4 Taxes. To the extent not exempt under a valid tax exempt certificate, a
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copy of which shall be provided to Blackboard, Developer shall pay any Taxes
levied on the delivery of the Software in connection with Developer's sales. All
payments due under this Agreement shall be made without any deduction or
withholding, unless such deduction or withholding is required by any applicable
law of any relevant governmental revenue authority then in effect. If Developer
is required to deduct or withhold, Developer will promptly notify Blackboard of
the requirement, pay the required amount to the relevant governmental authority,
provide Blackboard with an official receipt or certified copy or other
documentation acceptable to Blackboard evidencing payment, and pay to
Blackboard, in addition to the payment to which Blackboard is otherwise entitled
under this Agreement, such additional amount as is necessary to ensure that the
net amount actually received by Blackboard equals the full amount Blackboard
would have received had no such deduction or withholding been required.
9 WARRANTY
9.1 Blackboard Warranties. Blackboard represents and warrants that (a) it
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has authorized the person who has signed this Agreement for Blackboard to
execute and deliver this Agreement to Developer on behalf of Blackboard, (b) it
and/or its suppliers and licensors possess all rights necessary to grant the
rights herein, and (c) Blackboard will comply with all applicable local,
national and international laws, regulations or other provisions in all material
respects in performing its obligations under this Agreement.
9.2 Developer Warranties. Developer represents and warrants (a) that it has
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authorized the person who has signed this Agreement for Developer to execute and
deliver this Agreement to Blackboard on behalf of Developer, (b) the Integration
Agent shall be developed in a good and workmanlike manner and in compliance with
the requirements of this Agreement, and (c) that it will comply with all
applicable local, national and international laws, regulations or other
provisions in all material respects in performing its obligations under this
Agreement.
10 DISCLAIMERS AND REMEDIES. THE FOLLOWING PARAGRAPHS OF THIS SECTION 10 ARE
IMPORTANT LEGAL LANGUAGE. PLEASE READ THESE PARAGRAPHS CAREFULLY, AS THEY LIMIT
BLACKBOARD'S LIABILITY TO DEVELOPER.
10.1 Disclaimer of Warranty. EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED
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IN SECTION 9 ABOVE: (A) TO THE MAXIMUM EXTENT PERMITTED BY LAW, BLACKBOARD AND
ITS LICENSORS AND SUPPLIERS DISCLAIM ALL OTHER REPRESENTATIONS OR WARRANTIES OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM
INTEGRATION AND/OR DATA ACCURACY, TOGETHER FOR THOSE DEVELOPERS DOWNLOADING THE
SOFTWARE WITHIN THE UNITED STATES, ANY WARRANTIES OF NON-INFRINGEMENT,
MERCHANTABILITY OR QUIET ENJOYMENT; (B) NEITHER BLACKBOARD NOR ITS LICENSORS
WARRANT THAT THE FUNCTIONS OR INFORMATION CONTAINED IN THE SOFTWARE WILL MEET
ANY REQUIREMENTS OR NEEDS DEVELOPER OR ITS CUSTOMERS MAY HAVE, OR THAT THE
SOFTWARE WILL OPERATE ERROR FREE OR WITHOUT INTERRUPTION, OR THAT ANY DEFECTS OR
ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE IS COMPATIBLE
WITH ANY PARTICULAR COMPUTER SYSTEM OR SOFTWARE; AND (C) BLACKBOARD AND ITS
LICENSORS MAKE NO GUARANTEE OF ACCESS OR OF ACCURACY OF THE CONTENT CONTAINED IN
OR ACCESSED THROUGH THE SOFTWARE.
10.2 Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO
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EVENT WILL BLACKBOARD OR ITS LICENSORS BE LIABLE TO DEVELOPER OR ITS CUSTOMERS
FOR ANY OF THE FOLLOWING TYPES OF LOSS OR DAMAGE ARISING IN ANY WAY OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE, WHETHER OR NOT BLACKBOARD WAS
ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE: (A) ANY LOSS OF
BUSINESS, CONTRACTS, PROFITS, ANTICIPATED SAVINGS, GOODWILL OR REVENUE; (B) ANY
LOSS OR CORRUPTION OF DATA; OR (C) ANY INCIDENTAL INDIRECT OR CONSEQUENTIAL
LOSSES OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, SPECIAL, PUNITIVE,
OR EXEMPLARY DAMAGES). IN NO EVENT SHALL BLACKBOARD'S CUMULATIVE LIABILITY FOR
ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE NATURE
OF THE CLAIM, EXCEED THE AMOUNT OF FEES PAID BY DEVELOPER UNDER THIS AGREEMENT
FOR THE PARTICULAR SOFTWARE WITH RESPECT TO WHICH THE RELEVANT CLAIM AROSE
DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR
OMISSION GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS
INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT
HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
10.3 Liability Not Excluded. Nothing in this Section 10 excludes or limits
the liability of Blackboard or its licensors or suppliers to the Developer for
death or personal injury caused by the negligence of Blackboard, its licensors
or suppliers or any other liability which cannot be excluded by law.
10.4 Essential Basis. The Parties acknowledge and agree that the
disclaimers, exclusions and limitations of liability set forth in this Section
10 form an essential basis of this Agreement, and that, absent any such
disclaimers, exclusions or limitations of liability, the terms of this
Agreement, including, without limitation, the economic terms, would be
substantially different.
11 INFRINGEMENT
11.1 Blackboard. Blackboard shall, at its own expense, defend or, at its
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option, settle any claim, suit or proceeding brought against Developer by a
third party for infringement or misappropriation of any U.S. patent, copyright,
trade secret or other proprietary right of any third party arising from the
Software (a "Developer Claim") and shall pay any damages finally awarded or
settlement amounts agreed upon to the extent based upon a Developer Claim;
provided that Developer provides Blackboard with (a) prompt written notice of
such Developer Claim, (b) control over the defense and settlement of such
Developer Claim; and (c) proper and full information and assistance to settle or
defend any such Developer Claim.
11.2 Exceptions. Blackboard shall have no liability to Developer under
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Section 10.1 or otherwise for any claim or action based upon (a) any use of the
Software in a manner other than as specified by Blackboard; (b) any use of the
Integration Agent; (c) or any combination of the Software by Developer with
other products, equipment, devices, software, systems or data not supplied by
Blackboard (including, without limitation, any software produced by Developer
for use with the Software) to the extent such claim is directed against such
combination; (d) any modifications or customization of the Software by any
person other than Blackboard (collectively, a "Developer Matter").
11.3 Developer. Developer shall, at its own expense, defend or, at its
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option, settle any claim, suit or proceeding brought against Blackboard arising
out of or based upon a Developer Matter (a "Blackboard Claim") and shall pay any
damages finally awarded or settlement amounts agreed upon to the extent based
upon a Blackboard Claim; provided that Blackboard provides Developer with (a)
prompt written notice of such Blackboard Claim; (b) control over the defense and
settlement of such Blackboard Claim; and (c) proper and full information and
assistance to settle or defend any such Blackboard Claim.
11.4 Exclusive Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 11 STATE THE
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ENTIRE LIABILITY AND OBLIGATIONS OF EACH PARTY, AND THE EXCLUSIVE REMEDY OF EACH
PARTY WITH RESPECT TO ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL
PROPERTY RIGHT.
BLACKBOARD TRANSACTION SYSTEM(TM)
BUILDING BLOCKS DEVELOPER'S LICENSE AGREEMENT Page 4
12 MISCELLANEOUS
12.1 Relationship of the Parties. Each of the Parties hereto shall conduct
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the work to be performed hereunder as an independent contractor and not as an
agent or employee of the other Party. Subject to the terms and conditions of
this Agreement, each Party shall choose the means to be employed and the manner
of carrying out its obligations hereunder. Each Party shall have the sole
responsibility for the supervision and payment of its personnel and, except as
agreed in writing, all other costs and expense required to perform its
obligations hereunder. This Agreement does not create a partnership, joint
venture, or fiduciary relationship and the Parties to this Agreement do not have
the right or authority to make any promise, guarantee, warranty, or
representation, or to assume, create, or incur any liability or other obligation
of any kind, express or implied, against or in the name of, or on behalf of, the
other Party, without the other Party's prior written consent or approval.
12.2 Severability. Should any term or provision of this Agreement be
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finally determined by a court of competent jurisdiction to be void, invalid,
unenforceable or contrary to law or equity, the offending term or provision
shall be modified and limited (or if strictly necessary, deleted) only to the
extent required to conform to the requirements of law and the remainder of this
Agreement (or, as the case may be, the application of such provisions to other
circumstances) shall not be affected thereby but rather shall be enforced to the
greatest extent permitted by law, and the parties shall use their best efforts
to substitute for the offending provision new terms having similar economic
effect.
12.3 Governing Law. This Agreement shall for all purposes be governed by and
interpreted in accordance with the laws of the Commonwealth of Virginia as those
laws are applied to contracts entered into and to be performed entirely in the
Commonwealth of Virginia by Virginia residents and without reference to its
conflicts of law provisions. The Parties hereby acknowledge and agree that the
U.N. Convention on Contracts for the International Sale of Goods shall not apply
to this Agreement.
12.4 Choice of Venue. Any legal suit, action or proceeding commenced by
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Blackboard arising out of or relating to this Agreement shall be commenced in
any federal or state court of or for Fairfax County in the Commonwealth of
Virginia, and each Party hereto irrevocably submits to the non-exclusive
jurisdiction and venue of any such court in any such suit, action or proceeding.
12.5 Modification and Waiver. Any modification, amendment, supplement, or
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other change to this Agreement or any Exhibit or Schedule hereto must be in
writing and signed by a duly authorized representative of each of Blackboard and
Developer. All waivers must be in writing. The failure of either Party to
insist upon strict performance of any provision of this Agreement, or to
exercise any right provided for herein, shall not be deemed to be a waiver of
the future of such provision or right, and no waiver of any provision or right
shall affect the right of the waiving Party to enforce any other provision or
right herein.
12.6 Assignment. No right or obligation of Developer under this Agreement
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may be assigned, delegated or otherwise transferred, whether by agreement,
operation of law or otherwise, without the express prior written consent of
Blackboard, and any attempt to assign, delegate or otherwise transfer any of
Developer rights or obligations hereunder, without such consent, shall be void.
Blackboard may assign its rights and obligations hereunder without the consent
of Developer. Subject to the provisions of this Section 12.6, this Agreement
shall bind each Party and its permitted successors and assigns.
12.7 Remedies. The Parties agree that any breach of this Agreement would
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cause irreparable injury for which no adequate remedy at law exists; therefore,
the parties agree that equitable remedies, including without limitation,
injunctive relief and specific performance, are appropriate remedies to redress
any breach or threatened breach of this Agreement, in addition to other remedies
available to the parties. All rights and remedies hereunder shall be
cumulative, may be exercised singularly or concurrently and shall not be deemed
exclusive. If any legal action is brought to enforce any obligations hereunder,
the prevailing Party shall be entitled to receive its legal fees, court costs
and other collection expenses, in addition to any other relief it may receive.
12.8 Notices. Any notice or communication permitted or required hereunder
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shall be in writing and shall be delivered in person or by courier, sent by
facsimile, or mailed by certified or registered mail, postage prepaid, return
receipt requested, and addressed as set forth above or to such other address as
shall be given in accordance with this Section 12.8, and shall be effective upon
receipt.
12.9 Force Majeure. Neither Blackboard nor Developer will be responsible for
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any failure to fulfill its obligations due to causes beyond its reasonable
control, including without limitation, acts or omissions of government or
military authority, acts of God, materials shortages, transportation delays,
fires, floods, labor disturbances, riots, wars, or inability to obtain any
export or import license or other approval of authorization of any government
authority.
12.10 Further Assurances. Each of the Parties shall use its commercially
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reasonable efforts to effectuate the transactions contemplated hereby.
[THE PARTIES ALSO AGREE TO DISCUSS, BUT ARE NOT BOUND HEREBY TO ENTER, FUTURE
MARKETING OR RESALE ARRANGEMENTS RELATED TO THE INTEGRATION AGENT OR OTHER
DEVELOPER SOFTWARE.]
12.11 Construction; Counterparts. The headings herein will not be considered
--------------------------
a part of this Agreement. This Agreement may be executed in several
counterparts, all of which will constitute a single agreement.
12.12 Entire Agreement. This Agreement, including the Explanatory
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Statement, the Schedule(s) and Exhibits constitute the entire, full and complete
Agreement between the parties concerning the subject matter hereof, and they
collectively supersede all prior agreements concerning the subject matter
hereof.
BLACKBOARD INC. __________________________________
Signature:________________ Signature:________________________
By:_______________________ By: ______________________________
Date:_____________________ Date: ____________________________
BLACKBOARD TRANSACTION SYSTEM(TM)
BUILDING BLOCKS DEVELOPER'S LICENSE AGREEMENT Page 5
EXHIBIT A : DEVELOPER PROGRAM FEES / OPERATING SYSTEM(S)
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OPERATING SYSTEM ANNUAL MEMBER SHIP FEES (2003) ADDITIONAL INTEGRATION AGENT MEMBERSHIP FEES
Windows or Unix $7500 per year membership $7500 per year per additional integration agent
(covers one integration agent)
BLACKBOARD TRANSACTION SYSTEM(TM)
BUILDING BLOCKS DEVELOPER'S LICENSE AGREEMENT Page 6
