EXHIBIT 10.9
Kana Communications, Inc.
ONLINE SERVICES AGREEMENT
This Agreement ("Agreement") is effective as of __________________________,
199__ ("Effective Date"), and is made by and between:
Kana Communications, Inc., a California corporation , with its principal place
of business at 00 Xxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 ("Kana") and
___________________________, a _______________________________ corporation, with
its principal offices at __________________________("Customer").
Whereas, Kana desires to provide to Customer the Services described in Schedule
A ("Services"); whereas Kana owns, or has licensed from the owner(s), copyrights
and other rights to the software product identified in Schedule A, and
associated documentation related to the Services provided by Kana under this
Agreement (collectively, the "Software"); whereas, Customer desires to receive a
non-exclusive license to use such Software at the site(s) listed below and to
receive the Services; and whereas, Kana is willing to grant such a non-exclusive
license to Customer for the Licensed Software for use in connection with the
Services on the terms and conditions set forth below; the parties agree as
follows:
1. Kana's Duties and Obligations.
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a. Kana shall provide the Services described in Schedule A attached
hereto, which may be modified from time to time at Kana's sole discretion.
b. Pursuant to the provisions of Services hereto and subject to the terms
of this Agreement, Kana grants to Customer a personal, nontransferable,
nonsublicensable, nonexclusive, limited license to: (a) use the Software in
accordance with the documentation supplied by Kana only at the location
("Licensed Site") and for the number of authorized users ("Authorized Users")
specified on Schedule A. Any copies of the Software made in violation of this
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Agreement shall be deemed copyright infringement.
Ownership of Software. As between the parties, title to and ownership of the
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Software, all proprietary rights therein, any accompanying printed materials and
all copies and portions thereof shall be and at all times remain in Kana. The
Software and accompanying printed materials are protected by copyright,
trademark and trade secret laws and international treaty provisions.
3. Customer's Duties and Responsibilities; Restrictions.
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a. Data and Information. Customer shall make available in a timely manner
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at no charge to Kana all technical data, files, documentation, sample output, or
other information and resources required by Kana for the performance of the
Services. Customer will be responsible for, and assumes the risk of any problems
resulting from, the content, accuracy, completeness and consistency of all such
data, materials and information supplied by Customer.
b. Tasks; Assistance With Third Parties. Tasks that are primarily the
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responsibility of Customer's personnel will remain Customer's responsibility and
will remain under Customer's supervision, management and control, even if Kana
assists Customer in performing such tasks. Customer shall cooperate with Kana
and provide such assistance as Kana may reasonably request, in connection with
Kana's efforts to obtain all consents, approvals and authorizations of and
cooperation from third parties needed by Kana and give all notices to third
parties which may be necessary or required in
order to effectuate the transactions contemplated hereby. Customer shall bear
any costs (including those above and beyond Kana's quoted costs and including
added time) resulting from Customer's failure to meet there obligations.
c. Contact Person. Each party will appoint in writing an employee or
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agent of such party to act as the "Contact Person" for all communication between
the parties related to the Services. The Contact Person will be responsible for
monitoring the status of the Services and will schedule regular meetings with
both technical and management personnel of each party to review the status of
the Services. Either party may change its Contact Person upon written notice to
the other.
d. No Reverse Engineering; Third Parties. Customer agrees that under no
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circumstance shall it, or shall it cause or permit any third party to, (a)
distribute or allow others to distribute copies of the Software or the
associated documentation to a person or entity outside of the Licensed Site, (b)
reproduce, modify or copy the Software and associated documentation except as
expressly permitted by this Agreement, or as permitted by Kana in writing (c)
provide, rent, sell, lease or otherwise transfer the Software or any copy or
part thereof (d) reverse assemble, reverse compile or reverse engineer the
Software, or otherwise attempt to discover any Software source code or
underlying Proprietary Information (as defined below).
e. Compliance with Laws. Customer agrees that it shall comply with all
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export laws and restrictions and regulations of the U.S. Department of Commerce
or other United States or foreign agency or authority, and not, under any
circumstances, export or re-export, or allow the export or re-export of the
Software any Proprietary Information (as defined in Section 5 hereto) or any
copy or direct product thereof or in violation of any such restrictions, laws or
regulations, or to any Group D:1 or E:2 country (or any national of such
country) specified in the then current Supplement No. 1 to Part 740, or, in
violation of the embargo provisions in Part 746, of the U.S. Export
Administration Regulations (or any successor regulations or supplement), even if
Customer is in compliance with all licenses and approvals required under
applicable export laws and regulations, including without limitation, those of
the U.S. Department of Commerce.
4. Audit; Inspections.
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a. Customer shall keep, maintain and preserve for at least two (2) years
following termination or expiration of the term of this Agreement or any
renewal(s) thereof, accurate records relating to Customer's obligations
hereunder. Such records shall be maintained as confidential, but shall be
available for inspection and audit as provided herein. Kana shall have the
right at least twice per calendar year to have an independent public accountant,
reasonably acceptable to Customer, examine Customer 's relevant books, records
and accounts for the purpose of verifying the accuracy of payments made as
required under this Agreement. Kana acknowledges and agrees that such
accountant shall not have access to the books, records, and accounts relating to
other products or services except as such books, records and accounts also
directly relate to the payments due hereunder. Each audit will be conducted at
Customer's place of business, or other place agreed to by the Parties, during
Customer's normal business hours and with at least five (5) business days prior
written notice to Customer. Kana shall pay the fees and expenses of the auditor
for the examination; provided that should any examination disclose a greater
than five percent (5%) shortfall in the payments due Kana for the period being
audited, Customer shall pay the reasonable fees and expenses of the auditor for
that examination.
b. The Software is the Proprietary Information (as defined in Section 5)
of Kana and is subject to all the terms and conditions of this Agreement.
Additionally, Customer agrees to use the Software under carefully controlled
conditions solely for the purposes set forth herein and subject to the
restrictions in Section 3 above, and to inform all employees who are given
access to the Software by Customer that such materials are confidential trade
secrets of Kana and are licensed to Customer as such. Customer agrees to take
all necessary steps to prevent the unauthorized disclosure of the Software
including, without limitation, restricting access to the Software only to a
limited number of employees who have agreed to be bound by a written agreement
which incorporates at least the protections and restrictions set forth herein
5. Confidentiality; Assignment
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a. Each party ("Receiving Party") agrees to keep confidential and not
disclose or use except in performance of its obligations under this Agreement,
confidential or proprietary information related to the other party's
("Disclosing Party") technology or business that the Receiving Party learns in
connection with this Agreement and any other information received from the
other, including without limitation, to the extent previously, currently or
subsequently disclosed to the Receiving Party hereunder or otherwise:
information relating to products or technology of the Disclosing Party or the
properties, composition, structure, use or processing thereof, or systems
therefor, or to the Disclosing Party's business (including, without limitation,
computer programs, code, algorithms, schematics, data, know-how, processes,
ideas, inventions (whether patentable or not), names and expertise of employees
and consultants, all information relating to customers and customer transactions
and other technical, business, financial, customer and product development
plans, forecasts, strategies and information), all of the foregoing,
"Confidential Information"). Neither party shall disclose the terms of this
Agreement to any third party without the prior written consent of the other
party. Each party shall use reasonable precautions to protect the other's
Confidential Information and employ at least those precautions that such party
employs to protect its own confidential or proprietary information.
b. "Confidential Information" shall not include information the Receiving
Party can document (a) is in or (through no improper action or inaction by the
Receiving Party or any affiliate, agent or employee) enters the public domain
(and is readily available without substantial effort), or (b) was rightfully in
the Receiving Party's possession or known by it prior to receipt from the
Disclosing Party, or (c) was rightfully disclosed to the Receiving Party by
another person without restriction, or (d) was independently developed by the
Receiving Party by persons without access to such information and without use of
any Confidential Information of the Disclosing Party.
c. Each party, with prior written notice to the Disclosing Party, may
disclose such Confidential Information to the minimum extent possible that is
required to be disclosed to a governmental entity or agency in connection with
seeking any governmental or regulatory approval, or pursuant to the lawful
requirement or request of a governmental entity or agency, provided that
reasonable measures are taken to guard against further disclosure, including
without limitation, seeking appropriate confidential treatment or a protective
order, or assisting the other party to do so.
d. The Receiving Party acknowledges and agrees that due to the unique
nature of the Disclosing Party's Confidential Information, there can be no
adequate remedy at law for any breach of its obligations hereunder, that any
such breach may allow the Receiving Party or third parties to unfairly compete
with the Disclosing Party resulting in irreparable harm to the Disclosing Party,
and therefore, that upon any such breach or any threat thereof, the Disclosing
Party shall be entitled to appropriate equitable relief in addition to whatever
remedies it might have at law and to be indemnified by the Receiving Party from
any loss or harm, including, without limitation, lost profits and attorney's
fees, in connection with any breach or enforcement of the Receiving Party's
obligations hereunder or the unauthorized use or release of any such
Confidential Information. The Receiving Party will notify the Disclosing Party
in writing immediately upon the occurrence of any such unauthorized release or
other breach. Any breach of this Section 6 will constitute a material breach of
this Agreement.
e. Customer hereby assigns to Kana any invention, work of authorship, idea
or know-how (whether or not patentable) relating to the Software that is
conceived, learned or reduced to practice in the course of performance under
this Agreement and any patent rights, copyrights (including moral rights;
provided that non-assignable moral rights are waived to the extent permitted by
law), trade secret rights, and other rights with respect thereto. Customer
agrees to take any action reasonably requested by Kana to evidence, perfect,
obtain, maintain, enforce or defend the foregoing.
Services Fee; Payment. Customer shall pay the fees for the Services ("Services
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Fee") as set forth in Schedule A hereto. All payments are due and payable thirty
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(30) days after the date of Kana's invoice and shall be made in U.S. Dollars in
the United States. All such services fees are exclusive of shipping, taxes,
duties and the like, which shall be paid by Customer. All late payments shall be
assessed a service charge of 1.5% per month to the extent allowed by law.
Installation; Training. Installation and training for the Software, if
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applicable, shall be provided only pursuant to the installation and training
terms and conditions set forth in Schedule A hereto.
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Termination. The term of this Agreement and the rights granted herein is one (1)
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month. At the end of that term, this Agreement shall renew automatically for
additional one (1) month terms unless either party provides notice to the other
at least five (5) days before the end of the then current term. Notwithstanding
the foregoing, the rights granted herein may be terminated upon the following
events; however, upon termination, the terms of this Agreement, will otherwise
survive and remain in effect.
a. Termination by Customer. Upon termination by Customer, Customer will
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cease all use of the Software and destroy or return to Kana all copies thereof
to Kana along with a signed written statement expressing Customer's desire to
terminate the license and certifying that Customer has destroyed or returned to
Kana, and is no longer in possession of, any Software, related documentation or
any copies, portions or derivatives of any of the foregoing.
b. Termination by Kana. Kana may immediately terminate this Agreement if
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Kana determines that Customer has failed to comply with any of the terms and
conditions of this Agreement. Upon such termination by Kana, all licenses and
rights granted hereunder shall terminate, Customer will cease all use of the
Software, and Customer shall immediately return to Kana, the Software, the
Master Disk(s), all Authorized Duplicates, Proprietary Information, together
with any and all documents, notes and other materials relating to the Software,
including, without limitation, all Proprietary Information and all copies and
extracts of the foregoing and all documentation and copies thereof, along with a
signed written statement certifying that Customer has returned to Kana, and is
no longer in possession of, any Software, Master Disk(s), Authorized Duplicates,
related documentation or any copies, portions or derivatives of any of the
foregoing.
Limited Warranty and Disclaimer. Kana warrants that it will use commercially
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reasonable efforts to meet the service levels during the term of this Agreement.
Kana warrants that, for a period of ninety (90) days from the date of
installation of the Software, (a) the Software will perform substantially in
accordance with the accompanying printed materials, and (b) the medium upon
which the Software is provided by Kana to Customer shall be free from defects in
material and workmanship under normal use. This warranty covers only problems
reported to Kana during the warranty period. WARRANTY DISCLAIMER: EXCEPT AS
EXPRESSLY STATED HEREIN, THE SERVICES AND SOFTWARE ARE PROVIDED "AS IS" WITHOUT
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OR NONINFRINGEMENT. CUSTOMER BEARS ALL RISK RELATING TO QUALITY AND PERFORMANCE
OF THE SERVICES AND THE SOFTWARE. Performance of the Services and Software
hereunder varies with various manufacturers' equipment with which it is used.
Kana does not warrant that the Services or the functions contained in the
Software will meet Customer's requirements, operate without interruption or be
error free. Customer's exclusive remedy for breach by Kana of its limited
warranty set forth above shall be replacement of any defective Software or
medium upon its return to Kana within the warranty period, or if Kana is unable
to provide a replacement which is free of defect, refund of the services fee
paid by Customer.
Limitation of Remedies and Damages. ANY LIABILITY OF KANA WILL BE LIMITED TO
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PRODUCT REPLACEMENT OR, IF REPLACEMENT IS INADEQUATE OR IN KANA'S OPINION
IMPRACTICAL, TO REFUND OF THE FEES PAID BY CUSTOMER HEREUNDER. KANA SHALL NOT BE
RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR
TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF
PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS
OF REVENUES, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OR INACCURACY OF
DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, ARISING OUT OF THE USE OF OR
INABILITY TO USE THE SERVICES, EVEN IF KANA HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. IN NO EVENT WILL KANA'S LIABILITY EXCEED THE AMOUNT PAID BY
CUSTOMER FOR THE SERVICES. KANA SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND
ITS REASONABLE CONTROL. Because some jurisdictions do not allow the exclusion or
limitation of liability of consequential or incidental damages, the above
limitation may not apply.
Government Use. If Customer is a unit or agency of the government, or acquiring
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the Services with government funds, the software and documentation are provided
subject to Kana's standard commercial license; provided, however, that any
contracts with non-defense agencies subject to the FAR, the Government shall
have the rights set forth in subparagraph (c) of FAR 52.227-19, "Commercial
Computer Software-Restricted Rights," as applicable.
Nonassignability. Neither the rights nor the obligations arising under this
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Agreement are assignable or transferable by Customer, and any such attempted
assignment or transfer shall be void and without effect.
Execution of Agreement, Controlling Law, Attorneys' Fees. This Agreement shall
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become effective as of the Effective Date and only upon its execution by both
Kana and Customer. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without regard to the
conflicts of law provisions thereof and without regard to the United Nations
Convention on the International Sales of Goods. In any action to enforce this
Agreement the prevailing party will be entitled to costs and attorneys' fees.
Equitable Relief. Customer acknowledges and agrees that due to the unique nature
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of Kana's Proprietary Information, there can be no adequate remedy at law for
any breach of its obligations hereunder, that any such breach may allow Customer
or third parties to unfairly compete with Kana resulting in irreparable harm to
Kana and, therefore, that upon any such breach or threat thereof, Kana shall be
entitled to injunctions and other appropriate equitable relief, in addition to
whatever remedies it may have at law.
Notice. Any notice, report, approval or consent required or permitted hereunder
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shall be in writing and will be deemed to have been effectively given: (i)
immediately upon personal delivery or facsimile transmission to the parties to
be notified, (ii) one (1) day after deposit with a commercial overnight courier
with tracking capabilities, or (iii) three (3) days after deposit with the
United States Postal Service, by registered or certified mail, postage prepaid
to the respective addresses of the parties as set forth above.
Waiver. The waiver by either party of a breach of this Agreement or any right
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hereunder shall not constitute a waiver of any subsequent breach of this
Agreement; nor shall any delay by either party to exercise any right under this
Agreement operate as a waiver of any such right. If any provision of this
Agreement shall be adjudged by any court of competent jurisdiction to be
unenforceable or invalid, that provision shall be limited or eliminated to the
minimum extent necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable.
BASIS OF BARGAIN. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS
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AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL BARGAINED
FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND
REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS
AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
Entire Agreement. This Agreement constitutes the entire agreement between the
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parties hereto related to the subject matter hereof, and any and all written or
oral agreements, except for any Nondisclosure Agreements or Beta Test
Agreements, heretofore existing between the parties hereto, are expressly
cancelled. Any modifications of this Agreement must be in writing and signed by
both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
KANA COMMUNICATIONS, INC.
By
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Name (Print) By
___________________________________ ___________________________________
Title Name (Print)
CUSTOMER
___________________________________
Title
