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MASTER PURCHASE AGREEMENT
No. E/W
This Master Purchase Agreement ("Agreement") is entered into between Net
Perceptions-TM-, Inc., a Delaware corporation with an office at 00000 Xxxx 00xx
Xxxxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000-0000 (Phone: 000-000-0000; Fax:
000-000-0000; E-mail: xxxx@xxxxxxxxxxxxxx.xxx) ("NPI") and the "Customer" listed
below.
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Customer: Contact:
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Address: Phone:
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Fax:
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E-Mail:
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The terms of this Agreement shall apply to each software license granted and to
all services provided by NPI under this Agreement.
1. DEFINITIONS
1.1. "SOFTWARE" means the computer software described in the applicable
Order Schedule, along with any Updates (as defined below) licensed
to Customer pursuant to this Agreement. Unless otherwise indicated,
the term "Software" will include the "Documentation."
1.2. "DOCUMENTATION" means the reference materials, whether in printed or
machine readable form, generally furnished with the Software.
1.3. "UPDATES" means maintenance releases, improvements, and enhancements
to the Software and/or the Documentation which are generally
provided by NPI to customers receiving Support Services at no
additional charge. Updates do not include releases, improvements,
and enhancements for which NPI elects to charge separately.
1.4. "ORDER SCHEDULE" means an order form including a description of the
specific Software and Services that Customer is ordering. Each
Order Schedule will be signed by the parties and, when accepted and
signed by NPI, becomes a part of this Agreement.
1.5. "SUPPORT SERVICES" means the remote telephone, fax, or e-mail
consultation, bug fixes, error corrections, workarounds, and Updates
as more specifically detailed in Section 4 and Exhibit A of this
Agreement.
1.6. "PROFESSIONAL SERVICES" means services provided to Customer pursuant
to an Order Schedule for training, installation, education,
application design, custom development or other consulting services.
1.7. "SERVICES" means any combination of Support Services and
Professional Services being provided to Customer by NPI pursuant to
an Order Schedule.
1.8. "SUPPORTED SOFTWARE LICENSE" means a Software license for which
Customer has ordered Support Services for the relevant time period.
1.9. "SOFTWARE KEY" means a device installed in the Software that is
necessary for the operation of the Software and which may restricts
the use of the Software.
2. SOFTWARE LICENSE
2.1. The Software, if any, ordered from time to time by Customer from NPI
will be set forth on the Order Schedule attached hereto or on a
subsequent Order Schedule. Subject to all the terms of this
Agreement and payment of all fees, NPI grants Customer a
nonsublicensable, nonexclusive, nontransferable license to use such
Software in object code form only. Except as otherwise indicated in
an Order Schedule, for each license granted, Customer will have the
right to: (a) use the Software solely for Customer's own internal
data processing operations; (b) move the Software temporarily in
case of computer system malfunction; (c) makes copies of the
Software solely for backup and archival purposes, provided that any
such copy is subject to the terms of this Agreement; and (d) merge
the Software into other programs for Customer's own use, provided
that any portion of the Software so merged will be subject to the
terms of this Agreement. NPI retains ownership of all Software and
copies. Customer will maintain the copyright notice and any other
notices that appear on the Software on any copies and any media.
2.2. Customer's use of the Software is limited to that specifically
permitted in this Agreement and the applicable Order Schedule(s),
and shall be configured so as to require the presence of a Software
Key in order for Customer to operate the Software. The Software Key
may restrict Customer's access to the Software. Customer will not
(and will not allow any third party to) reverse engineer or attempt
to discover any source code or underlying ideas or algorithms of any
Software (except to the extent that applicable law prohibits reverse
engineering restrictions), provide, lease, lend, use for timesharing
or service bureau purposes or otherwise use or allow others to use
the Software for the benefit of any third party.
2.3. Within the United States or Canada, Customer may transfer the
Software to another CPU or Server of like kind in Customer's
possession upon written notice to NPI so long as Customer uses the
Software in accordance with the license(s) granted under this
Agreement. Transfer of the Software
outside the United States or Canada may be permitted only with NPI's
prior written consent. In such case, Customer agrees to: (a) comply
fully with any relevant United States export controls; and
(b) obtain all licenses and approvals required under applicable
export laws and regulations.
3. PROFESSIONAL SERVICES
3.1. The Professional Services, if any, being ordered from time to time
by Customer from NPI will be set forth on the Order Schedule
attached hereto or on a subsequent Order Schedule. NPI will use its
commercially reasonable efforts to complete the Professional
Services within the time period specified on the applicable Order
Schedule, provided that NPI shall have no liability for failure to
meet the time period specified.
3.2. Fees and other charges for Professional Services will be as provided
in the applicable Order Schedule. Unless otherwise agreed,
compensation for additional services not set forth on the applicable
Order Schedule shall be on a time and expense basis at NPI's then
current rates. NPI retains ownership of the results of all
Professional Services.
3.3. Customer may terminate any Professional Services ordered at any time
prior to the completion thereof upon NPI's receipt of written notice
of such suspension, provided that Customer is obligated to pay all
monies owed to NPI prior to such termination (including any expenses
incurred by NPI prior to such termination or as a result of such
termination). In the event Customer suspends performance of
Professional Services, in whole or part, under this Agreement for a
period of ninety (90) days or more through no fault of NPI and
subsequently requests NPI to resume such Professional Services,
NPI's fees for the remainder of such Professional Services shall be
at NPI's then current rates for such Professional Services.
3.4. All documents furnished to NPI by Customer and all documents and
supportive data (excluding any and all software) prepared by NPI
under this Article 3 shall be Customer's property and shall be
delivered to Customer at or before completion of the Professional
Services. Nothing herein shall be deemed to transfer to Customer
the ownership of any software developed by NPI. However, if
Customer retains NPI to develop software or software applications
specifically for Customer, Customer shall have a fully-paid up
license to such software or software applications, subject to all of
the terms and conditions of this Agreement. However, as between the
parties, NPI will own all rights, title, interest and intellectual
property with respect to the Software and all derivatives,
enhancements and modifications of NPI's products, all of which are
hereby retained by, or assigned to it, by Customer.
3.5. Notwithstanding anything to the contrary in this Agreement, NPI
shall not be prohibited or enjoined at any time by Customer from
utilizing any "skills or knowledge of a general nature" acquired
during the course of performing the Professional Services specified
under this Agreement. For purposes of this Agreement, "skills or
knowledge of a general nature" shall include, without limitation,
information publicly known or that could reasonably have been
acquired in similar work performed for another customer.
4. SUPPORT SERVICES
4.1. The Support Services, if any, being ordered from time to time by
Customer from NPI will be set forth on the Order Schedule attached
hereto or on a subsequent Order Schedule. NPI will provide Support
Services to Customer so long as Customer has a Supported Software
License. Support Services are available for the most current
version of the Software and for the immediately previous sequential
release for up to six 6 months after the current version becomes
generally available. Detailed terms and conditions of Support
Services are attached to this Agreement as Exhibit A.
4.2. Except as set forth on the applicable Order Schedule, the initial
term of Support Services for the Software begins on the later of
(a) the delivery date of the Software (as applicable) or (b) the
date specified in the applicable Order Schedule and shall continue
in effect for twelve (12) consecutive months thereafter or until
terminated by either party upon ninety (90) days prior written
notice to the other party ("Support Period"). NPI will have no
support obligation to Customer: (a) at the end of any Support Period
unless Customer elects to obtain additional Support Services by
paying NPI an annual Support Services renewal fee; (b) where
Customer is using a version of the Software that is not the
then-current or immediately previous sequential release; or (c)
where the Software has been modified by Customer. In the event
Customer elects not to obtain or renew Support Services, Customer
may retain the Software but will have no further right to Support
Services for the Software. Customer may reinstate any lapsed
Support Services contract by paying NPI an amount equal to 120% of
the amounts remaining on the contract to be reinstated.
4.3. The Support Services rates on the applicable Order Schedule shall be
effective for the initial term of the Support Services as defined
therein. Rates for extension periods shall be at NPI's then current
rates for the applicable Support Services.
5. CONFIDENTIAL INFORMATION
5.1. By virtue of this Agreement, either party may have access to the
other party's information that is confidential ("Confidential
Information"). Each party agrees to hold the other party's
Confidential Information in confidence during the term of this
Agreement and for a period of three years after termination. Each
party further agrees that unless required by law and after written
notice to the other party, it will not make any part of the other
party's Confidential Information available in any form to any third
party or use such Confidential Information for any purpose other
than the implementation of this Agreement. Each party agrees to
take commercially reasonable steps to ensure that Confidential
Information is not disclosed or distributed by its employees or
agents in violation of the terms of this Agreement.
5.2. "Confidential Information" means non-public information clearly
identified as proprietary or confidential. Confidential Information
may include (but is not limited to) information concerning business
methods, business plans, customer information, data warehousing
methodologies, the Software, the Documentation, pricing terms, and
test results, including
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the results of any evaluation of the Software or of a pre-production
release thereof.
5.3. Confidential Information does not include information that: (a) is
or becomes generally available to the public through no act or
omission of the other party; (b) is disclosed to the other party by
a third party without restriction on disclosure and without breach
of a nondisclosure obligation; or (c) is previously known (as
evidenced by contemporaneous written evidence) to the other party
without nondisclosure obligations.
6. INDEMNIFICATION
6.1. NPI shall hold Customer harmless from liability to third parties
resulting from infringement by Software of any United States patent
issued sixty (60) days or more before delivery of such Software or
any copyright or misappropriation of any trade secret, provided NPI
is promptly notified of any and all threats, claims and proceedings
related thereto and given reasonable assistance and the opportunity
to assume sole control over defense and settlement; NPI will not be
responsible for any settlement it does not approve in writing. The
foregoing obligations do not apply with respect to the Software or
portions or components thereof (i) not supplied by NPI, (ii) made in
whole or in part in accordance to Customer specifications,
(iii) that are modified after delivery by NPI, (iv) combined with
other products, processes or materials where the alleged
infringement relates to such combination, (v) where Customer
continues allegedly infringing activity after being notified thereof
or after being informed of modifications that would have avoided the
alleged infringement, or (vi) where Customer's use of such Software
is not strictly in accordance with this Agreement. Customer will
indemnify NPI from all damages, settlements, attorneys' fees and
expenses related to any claim of infringement or misappropriation
excluded from NPI's indemnity obligation by the preceding sentence.
7. LIMITED WARRANTY AND DISCLAIMER
7.1. With respect to Software, NPI warrants for a period of thirty (30)
days from Customer's first acquisition of Software that such
Software will materially conform to NPI's then current user
Documentation for such Software. This warranty covers only problems
reported to NPI during the warranty period. ANY LIABILITY OF NPI
WITH RESPECT TO THE SOFTWARE OR THE PERFORMANCE THEREOF UNDER ANY
WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY WILL BE
LIMITED EXCLUSIVELY TO SOFTWARE REPLACEMENT OR, IF REPLACEMENT IS
INADEQUATE AS A REMEDY OR, IN NPI'S OPINION, IMPRACTICAL, TO REFUND
OF THE LICENSE FEE. EXCEPT FOR THE FOREGOING, ALL SOFTWARE IS
PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, NPI DOES NOT WARRANT
RESULTS OF USE, THAT THE SOFTWARE IS BUG FREE OR THAT CUSTOMER'S USE
WILL BE UNINTERRUPTED.
7.2. NPI may provide Customer with a preproduction release of the
Software (often labeled "beta release"). These releases are not
suitable for commercial use. Such releases are provided on an "AS
IS" basis. NPI does not warrant preproduction releases.
7.3. With respect to Professional Services, NPI, EXCEPT FOR THE EXPRESS
WARRANTIES STATED IN THE APPLICABLE ORDER SCHEDULE, IF ANY,
DISCLAIMS ALL WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, and the stated
express warranties, if any, are in lieu of all other obligations or
performance liabilities arising out of, or in connection with, the
rendering of the Professional Services hereunder.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, AND EXCEPT
FOR BODILY INJURY, NPI SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE
SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS
IN THE AGGREGATE OF THE FEES PAID TO IT HEREUNDER WITH RESPECT TO THE
APPLICABLE SOFTWARE OR SERVICE DURING THE SIX MONTH PERIOD PRIOR TO THE
CAUSE OF ACTION; (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS,
TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY INCIDENTAL OR CONSEQUENTIAL
DAMAGES; (IV) FOR INTERRUPTION OF USE, LOSS OR CORRUPTION OF DATA; OR (V)
FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
9. TERM AND TERMINATION
9.1. This Agreement will take effect on the Effective Date. This
Agreement and each license granted hereunder, unless otherwise
agreed, will remain in effect unless and until terminated by mutual
agreement of the parties or as set forth herein.
9.2. Customer may terminate this Agreement or any license(s) at any time
upon written notice to NPI. NPI will have the right to terminate
this Agreement or any license(s) granted hereunder if Customer fails
to perform any material obligation under this Agreement (including
the obligation to pay amounts due hereunder) and fails to cure such
nonperformance within thirty (30) days following written notice of
such failure.
9.3. Except as otherwise provided herein, upon the effective date of any
license termination, Customer shall cease using the Software
provided under such license, return to NPI or destroy all copies of
the Software (including copies in storage media) and Documentation,
and provide NPI with written confirmation thereof. This requirement
applies to all copies in any form, partial or complete, and whether
or not merged into other materials. Upon the effective date of any
license termination, the Customer relinquishes all rights granted
under this Agreement with respect to the affected license(s).
9.4. The following obligations will survive termination of this Agreement
for any reason: (a) prohibitions against the use or
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nondisclosure of Confidential Information; (b) indemnification;
(c) obligations to make payments of amounts that become due under
this Agreement prior to termination.
10. GENERAL TERMS
10.1. PAYMENT. Customer agrees to pay NPI the license and service fees
indicated in applicable Order Schedules. All fees are payable in
full to NPI as specified in applicable Order Schedules. For any
overdue payments, late fees will accrue at the lesser of: (a) 1% per
month; or (b) the maximum rate allowed under law. All fees are
payable in U.S. dollars and do not include taxes. If NPI is
required to pay any sales, use, GST, value-added withholding, or
similar taxes or levies, such amounts (other than taxes based on
NPI's income) will be billed to and paid by Customer.
10.2. NOTICES. Any notices (including address change notices) will be in
writing and will be deemed given when: (1) delivered personally; (2)
sent by first class mail, return receipt requested; or (3) upon
receipt by prepaid express courier. Notices will be addressed to
NPI and Customer at the addresses set forth in this Agreement.
10.3. ASSIGNMENT. The rights and obligations of Customer under this
Agreement are not assignable without the prior written consent of
NPI and any attempt to assign them without such consent will be
void. NPI may assign, upon written notice to Customer, both the
rights and obligations of this Agreement to any surviving
corporation in any merger or consolidation to which it is a party or
to any party that acquires all or substantially all of its capital
stock or assets.
10.4. WAIVER. The failure of a party to prosecute its rights with respect
to a default or breach hereunder shall not constitute a waiver of
the right to enforce its rights with respect to the same or any
other breach.
10.5. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of Minnesota, USA.
10.6. FORCE MAJEURE. Neither party shall be responsible for any delay in
its performance due to causes beyond its reasonable control.
10.7. U.S. GOVERNMENT USERS. If Customer is a unit or agent of the United
States Government, or if a license hereunder is acquired pursuant to
a contract with any such unit or agency, Customer agrees that the
Software and Documentation are provided with Restricted Rights:
Use, duplication, or disclosure is subject to the restrictions as
set forth in the Rights in Technical Data and Computer Software
clause at DFARS 252.227-7013 subparagraph (c)(1)(ii), or the
Commercial Computer Software - Restricted Rights at CFR 52.227 19,
subparagraphs (c)(1) and (2), as applicable. Manufacturer is Net
Perceptions, Inc., 00000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxx Xxxxxxx,
XX 00000.
10.8. SEVERABILITY. In the event that any provision of this Agreement is
found invalid or unenforceable, it will be enforced to the extent
permissible and the remainder of this Agreement will remain in full
force and effect.
10.9. DUPLICATE ORIGINALS. This Agreement may be executed in any number
of counterparts. Each counterpart shall be an original, and when
taken together with all existing executed counterparts, shall form
one and the same document.
10.10. ENTIRE AGREEMENT. This Agreement constitutes the complete agreement
between the parties and supersedes all prior or contemporaneous
discussions, representations, and proposals, written or oral, with
respect to the subject matters discussed herein. No modification of
this Agreement will be effective unless contained in writing signed
by an authorized representative of each party. No term or condition
contained in Customer's purchase order will apply unless expressly
agreed to by NPI in writing.
The Effective Date of this Agreement is the later of the dates on which it is
signed.
Accepted by Customer Net Perceptions, Inc.
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Authorized Signature Authorized Signature
Name: Name:
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Title: Title:
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Date: Date:
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NET PERCEPTIONS, THE NET PERCEPTIONS LOGO AND GROUPLENS
ARE TRADEMARKS OF NET PERCEPTIONS, INC.
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EXHIBIT A
SUPPORT SERVICES
TERMS AND CONDITIONS
1. SUPPORT SERVICES TERMS AND CONDITIONS. Capitalized terms not defined in
Section 4 below have the same meaning as in the Agreement. NPI is
obligated under this Exhibit A only with respect to Support Services for
which it is obligated under Section 4 of the main body of the Agreement.
Support Services consist of (a) Error Correction and Telephone Support
provided to a single technical support contact concerning the installation
and use of the then current release of Software and the immediately
Previous Sequential Release and (b) updates that NPI in its discretion
makes generally available without additional charge.
2. ERROR PRIORITY LEVELS. NPI shall exercise commercially reasonable efforts
to correct any Error reported by Customer in the current unmodified release
of Software in accordance with the priority level reasonably assigned to
such Error by NPI.
PRIORITY A ERRORS - NPI SHALL PROMPTLY COMMENCE THE FOLLOWING PROCEDURES:
(i) ASSIGN NPI ENGINEERS TO CORRECT THE ERROR; (ii) NOTIFY NPI MANAGEMENT
THAT SUCH ERRORS HAVE BEEN REPORTED AND OF STEPS BEING TAKEN TO CORRECT
SUCH ERROR(S); (iii) PROVIDE CUSTOMER WITH PERIODIC REPORTS ON THE STATUS
OF THE CORRECTIONS; AND (iv) INITIATE WORK TO PROVIDE CUSTOMER WITH A
WORKAROUND OR FIX.
PRIORITY B ERRORS - NPI MAY INCLUDE THE FIX FOR THE ERROR IN THE NEXT MAJOR
RELEASE OF THE SOFTWARE.
If NPI believes that a problem reported by Customer may not be due to an
Error in Software, NPI will so notify Customer. At that time, Customer may
(1) instruct NPI to proceed with problem determination at its possible
expense as set forth below or (2) instruct NPI that Customer does not wish
the problem pursued at its possible expense. If Customer requests that NPI
proceed with problem determination at its possible expense and NPI
determines that the error was not due to an Error in the Software, Customer
shall pay NPI, at NPI's then-current and standard consulting rates, for all
work performed in connection with such determination, plus reasonable
related expenses incurred therewith. Customer shall not be liable for
(i) problem determination or repair to the extent problems are due to
Errors in the Software; (ii) work performed under this paragraph in excess
of its instructions; or (iii) work performed after Customer has notified
NPI that it no longer wishes work on the problem determination to be
continued at its possible expense (such notice shall be deemed given when
actually received by NPI). If Customer instructs NPI that it does not wish
the problem pursued at its possible expense, or if such determination
requires effort in excess of Customer's instructions, NPI may, at its sole
discretion, elect not to investigate the error with any liability therefor.
3. EXCLUSIONS. NPI shall have no obligation to support: (i) altered or damaged
Software or any portion of Software incorporated with or into other
software; (ii) Software that is not the then current release or immediately
Previous Sequential Release; (iii) Software problems caused by Customer's
negligence, abuse or misapplication, use of Software other than as
specified in the NPI's user manual or other causes beyond the control of
NPI; or (iv) Software installed on any hardware that is not supported by
NPI. NPI shall have no liability for any changes in Customer's hardware
that may be necessary to use the Software due to a Workaround or
maintenance release.
4. DEFINITIONS.
"Error" means an error in the Software that significantly degrades such
Software as compared to NPI's published performance specifications.
"Error Correction" means the use of reasonable commercial efforts to
correct Errors.
"Fix" means the repair or replacement of object or executable code versions
of Software to remedy an Error.
"Previous Sequential Release" means the release of Software that has been
replaced by a subsequent release of the same Software. Notwithstanding
anything else, a Previous Sequential Release will be supported by NPI only
for a period of six (6) months after release of the subsequent release.
"PRIORITY A ERROR" MEANS AN ERROR WHICH: (1) RENDERS THE SOFTWARE
INOPERATIVE; (2) CAUSES SUCH SOFTWARE TO FAIL CATASTROPHICALLY; (3)
SUBSTANTIALLY DEGRADES THE PERFORMANCE OF THE SOFTWARE; OR (4) MATERIALLY
RESTRICTS CUSTOMER'S USE OF SUCH SOFTWARE.
"PRIORITY B ERROR" MEANS AN ERROR THAT CAUSES ONLY A MINOR IMPACT ON THE
CUSTOMER'S USE OF THE SOFTWARE.
"Support Services" means NPI support services as described in Section 4.
"Telephone Support" means technical support telephone assistance provided
by NPI to the Technical Support Contact during normal business hours
concerning the installation and use of the then current release of Software
and the Previous Sequential Release.
"Workaround" means a change in the procedures followed or data supplied by
Customer to avoid an Error without substantially impairing Customer's use
of Software.
THESE TERMS AND CONDITIONS CONSTITUTE A SERVICE CONTRACT AND NOT A PRODUCT
WARRANTY. ALL SOFTWARE AND MATERIALS RELATED THERETO ARE SUBJECT EXCLUSIVELY TO
THE WARRANTIES SET FORTH IN THE AGREEMENT. THIS ATTACHMENT IS AN ADDITIONAL PART
OF THE AGREEMENT AND DOES NOT CHANGE OR SUPERSEDE ANY TERM OF THE AGREEMENT
EXCEPT TO THE EXTENT UNAMBIGUOUSLY CONTRARY THERETO.
