EXHIBIT 10.12
EXCLUSIVE DISTRIBUTION AGREEMENT
This Exclusive Distribution Agreement ("AGREEMENT") is made and entered into as
of May 26, 2004 ("AGREEMENT DATE") by and between Object Innovation, Inc., a
Florida corporation with its principal place of business at 0000 Xxxxxxxxxx Xxx
Xxxx Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 ("VENDOR"), and PPOL, Inc., a
California corporation with its principal place of business at 0 Xxxx Xxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxx, XX 00000 ("DISTRIBUTOR"). For purposes related to
Section 2.5 (below), or any other Sections requiring similar date calibration,
the effective date ("EFFECTIVE DATE") of this Agreement will be July 15, 2004.
RECITALS
WHEREAS, Vendor has rights to license and distribute, and to sublicense others
to license and distribute, the Products in the Territory (as those terms are
defined below); and
WHEREAS, Vendor desires to have Distributor, and Distributor desires to,
license, market and distribute the Products is the Territory pursuant to the
terms and conditions of this Agreement.
NOW, THEREFORE, is consideration of the mutual representations, warranties,
covenants and other terms and conditions contained herein, Vendor and
Distributor agree as follows:
AGREEMENT
1. DEFINITIONS
1.1 "AFFILIATE" of a Person/Legal Entity shall mean any other
Person/Legal Entity controlled by, controlling, or under common control with
such first Person/Legal Entity.
1.2 "CONFIDENTIAL INFORMATION" shall mean the source code for the
Software and any and all information and material disclosed by either part
("DISCLOSING PARTY") to the other party ("RECEIVING PARTY") (whether in writing,
or in oral, graphic, electronic or any other form) that is marked or identified
in writing as confidential or proprietary, or if disclosed orally or in other
intangible form or in any form that is not so marked, that is identified as
confidential at the time of such disclosure and summarized in writing and
transmitted to the Receiving Party within thirty (30) days of such disclosure.
Notwithstanding the previous sentence, information shall not be deemed
Confidential Information to the extent that such information: (a) was generally
known and available in the public domain at the time it was disclosed or
subsequently becomes generally known and available in the public domain through
no fault of the Receiving Party; (b) was known to the Receiving Party at the
time of disclosure; (c) is disclosed with the prior written approval of the
Disclosing Party; (d) was independently developed by the Receiving Party without
any use of the Confidential Information of the Disclosing Party; or (e) becomes
known to the Receiving Party from a source other than Disclosing Party within
breach of this Agreement by the Receiving Party and is otherwise not in
violation of the Disclosing Party's rights.
1.3 "CONTRACT YEAR" shall mean a twelve month period ending on the
anniversary of the Effective Date.
1.4 "DOCUMENTATION" shall mean the standard user documentation for the
Software, including, without limitation, user manuals, reference manuals,
training materials and installation manuals, and including my Japanese language
translations thereof.
1.5 "AGREEMENT DATE" shall mean the date that this Agreement is signed
and fully takes effect.
1.6 "EFFECTIVE DATE" shall mean that, for purposes related to the sales
and Distributor performance contemplated in this Agreement, the date which all
performance, milestones, and other metrics will be based.
1.7 "END USER" shall mean a Person, other than Distributor, who has
licensed the Products for ordinary internal business usage and not for purposes
of further resale.
1.8 "END USER LICENSE AGREEMENT" shall mean the End User terms and
conditions of license attached hereto as EXHIBIT A entered into between
Distributor (or Subsidiary, as applicable) and End User.
1.9 "ERROR" shall mean a defect or combination of defects in the
Software that result in a failure of the Software to function in accordance with
the technical specifications for the Software as set forth in the applicable
Documentation.
Page 1 of 20
1.10 "ERROR CORRECTION" shall mean a bug fix, patch or other
modifications or addition that, when made or added to the Software, corrects an
Error.
1.11 "FIRM PERIOD" shall have the meaning set forth in Section 8.4.
1.12 "FORCE MAJEURE EVENT" shall have the meaning set forth in Section
16.4.
1.13 "GROSS REVENUE" shall mean all amounts received by Vendor for the
license of the Product, less (a) freight, handling, service, refunds for
returns, insurance and other charges for delivery of the product (including,
without limitation, charges for transmission) and (b) sales, use, excise, value
added and other taxes.
1.14 "INITIAL TERM" shall have the meaning set forth in Section 14.1.
1.15 "INTELLECTUAL PROPERTY RIGHTS" shall mean, on a world-wide basis,
any and all now known or hereafter known tangible and intangible (a) rights
associated with works of authorship, inc, without limitation, copyrights, moral
rights and mask-works, (b) rights associated with trademarks, service marks,
trade names and similar rights, (c) trade secret rights, (d) patents, designs,
algorithms and other industrial property rights, (e) rights in domain names; (f)
all registrations, applications, renewals, extensions, continuations, divisions
or reissues thereof now or hereafter existing, made or in force (including any
rights in any of the foregoing).
1.16 "JAPANESE VERSION" shall have the meaning set forth in Section
2.2.
1.17 "MAINTENANCE RELEASE" shall mean a subsequent version of the
Software that including Error Corrections.
1.18 "PERSON" shall mean any natural person, corporation, partnership,
firm, association, limited liability company, government, governmental agency or
other entity, whether acting as an individual, fiduciary or other capacity.
1.19 "PRICE LIST" shall mean the price list set forth in EXHIBIT C
attached hereto.
1.20 "PRODUCTS" shall mean the Software and Documentation, individually
or collectively.
1.21 "RENEWAL TERM" shall have the meaning set forth in Section 14.1.
1.22 "SOFTWARE" shall mean the software programs set forth in EXHIBIT B
attached hereto, as Exhibit B may be amended from time to time by the parties'
mutual consent, and any modifications, changes (including translations or the
Japanese Version), improvements, workarounds and updates (including any Error
Corrections, Upgrades or Maintenance Releases) made to such software programs
during the Term.
1.23 "SUPPORT SERVICES" shall mean the Level One and Level Two
maintenance and support serves set forth in EXHIBIT E attached hereto.
1.24 "TERM" shall have the meaning set forth in Section 14.1.
1.25 "TERRITORY" shall mean the country of Japan.
1.26 "TRADEMARKS" shall mean the trademarks, trade names and service
marks set forth in EXHIBIT D attached hereto and such other marks as Vendor may
designate from time to time in writing during the Term.
1.27 "UPGRADE" shall mean any new version of the Software that adds
substantial new functionality to such Software.
2. GRANT OF RIGHTS
2.1 GRANT OF DISTRIBUTORSHIP. Subject to the terms and conditions of
this Agreement, Vendor hereby grants to Distributor the exclusive right during
the Term, within the Territory, to: (a) market and solicit sub-licenses for the
Software and Documentation to End Users and (b) distribute the Software and
Documentation to such End Users, provided that such End Users have validity
entered into an End User License Agreement with Distributor pursuant to Section
3.1(a) below. The Parties agree that Distributor shall, within one hundred
eighty (180) days after the date hereof, assign all of its rights and
obligations under this Agreement to a newly formed Japanese entity (the
"Subsidiary" that shall be a least majority-owned by PPOL, Inc. and its
Affiliates. Upon such assignment, the
Page 2 of 20
Subsidiary shall be deemed the "Distributor" hereunder for all purposes.
Notwithstanding any such assignment, PPOL, Inc. shall remain liable for all of
Distributor's obligations hereunder.
2.2 GRANT OF LICENSE TO SOFWARE AND DOCUMENTATION. Subject to the terms
and conditions of this Agreement, Vendor hereby grants to Distributor the
exclusive, royalty-free right and license (including the right to sublicense)
during the Term: (a) to modify and create derivative works of the Software and
Documentation for the purpose of developing a Japanese language version of the
Software and Documentation ("JAPANESE VERSION"); (b) to reproduce the Japanese
Version for distribution to End Users within the Territory; and (c) to use,
perform and display (whether publicly or otherwise) the Software and
Documentation for purposes of marketing, demonstrating, soliciting sub-licenses
for and distributing the Products, developing the Japanese Version, supporting
and maintaining the Products, and granting sub-licenses in accordance with the
terms hereof, in each case, solely in connection with fulfilling Distributor's
obligations and exercising Distributor's rights set forth in this Agreement. All
such derivative works shall, at all times, be the sole and exclusive property of
Vendor, but Vendor shall grant Distributor the right to use all such derivative
works in connection with fulfilling Distributor's obligations and exercising
Distributor's rights as set forth in this Agreement.
2.3 GRANT OF LICENSE TO TRADEMARKS. Subject to the terms and conditions
of this Agreement, Vendor, hereby grants to Distributor the non-exclusive right
during the Term, within the Territory, to use the Trademarks for purposes of
advertising and promoting the Products hereunder. Distributor understands and
agrees that the use of any Trademark in connection with this Agreement shall not
create any right, title or interest in or to the use of the Trademark, and that
all such use and goodwill associated therewith shall inure solely to the benefit
of Vendor.
2.4 GRANT OF RIGHT TO APPOINT SUB-DISTRIBUTORS. Subject to the terms
and conditions of this Agreement, Vendor hereby grants to Distributor the right
during the Term, to appoint sub-distributors within the Territory, in
Distributor's reasonable discretion and with Vendor's consent, such consent not
to be unreasonably withheld. Distributor shall not grant any sub-distribution
rights to a sub-distributor except pursuant to a written agreement in which such
sub-distributor agrees to all of the restrictions on the use of the Software and
Documentation contained herein and which agreement shall provide for conversion
to a non-exclusive agreement, if applicable, as set forth in Section 2.5 hereof.
2.5 LIMITATION ON EXCLUSIVITY. Vendor reserves the right to convert the
exclusive right granted to Distributor under Section 2.1 into a non-exclusive
right in accordance with the terms of this Section 2.5 (or to terminate this
Agreement as set forth in Section 14) in the event that the Distributor,
together with its sub-distributors, fails to meet the mutual Gross Revenue goals
in the Territory as follows (each, a "Revenue Goal"):
Contract Year 1 (commencing with the Effective Date and ending on
the day before the first anniversary of the Effective Date): US$1 million Gross
Revenues received by Vendor.
Contract Year 2 (commencing with the first anniversary of the
Effective Date and ending on the day before the second anniversary of the
Effective Date): US$2 million Gross Revenues received by Vendor.
Contract Year 3 (commencing with the second anniversary of the
Effective Date and ending on the day before the third anniversary of the
Effective Date): US$3 million Gross Revenues received by Vendor.
Contract Year 4 (commencing with the third anniversary of the
Effective Date and ending on the day before the fourth anniversary of the
Effective Date): US$5 million Gross Revenues received by Vendor.
Contract Year 5 (commencing with the fourth anniversary of the
Effective Date and ending on the day before the fifth anniversary of the
Effective Date): US$5 million Gross Revenues received by Vendor.
For the purposes of determining whether the Revenue Goal for that
Contract Year has been met, the Gross Revenues actually received by Vendor from
distribution shall determine compliance. In the event that Vendor converts the
exclusive right granted to distribution under Section 2.1 into a non-exclusive
right in accordance with this Section 2.5, then any exclusive
sub-distributorship granted by Distributor or its sub-distributors in such
Territory will be automatically converted to non-exclusive sub-distributorship.
By mutual consent of the Vendor and Distributor, the Effective
Date that is referenced herein may be extended to a new date that approximately
corresponds with the completion of the localization of Product to the Japanese
market. Since the intent is to measure Japanese sales performance, it is
reasonable to set the start of the Effective Date to when Japanese sales can
actually begin. In the event that localization has not been completed by the
Effective Date mentioned herein both parties agree to revise the Effective Date
to one that is appropriate.
Page 3 of 20
The Revenue Goal in accordance with the terms in Section 2.5 is
the basic idea and plan for both parties; however, both parties share the
understanding that we shall have time for discussion to adjust the plan before
it take place. The fatal conversion of the exclusive right granted to
Distributor under Section 2.1 into a non-exclusive right from Vendor occurs in
the event that Distributor fails to remit corresponding amount of money to vest
the restricted shares they own until the time period in accordance with the
terms of 5.7 clause of Stock Purchase Agreement for the Vendor. About the
continuation of the Exclusivity, both parties shall discuss after both parties
see the performance of the Distributor and the Territory until the time period
in accordance with the terms of 5.7 clause of Stock Purchase Agreement.
3. DISTRIBUTOR OBLIGATIONS
3.1 GENERALLY. Distributor shall use commercially reasonable efforts
to:
(a) advertise, market and promote the Products in the Territory;
(b) solicit and promote the sub-licensing of the Software;
(c) refrain from discrediting either the Products or Vendor;
(d) include in all advertising and promotional materials all
applicable copyright and trademark notices as they appear on the Products;
(e) provide Level One support to End Users in a professional and
workmanlike manner and in accordance with the highest industry standards;
(f) obtain, pay all costs associated with, and be in possession
of all official approvals, licenses, registrations, and permits required by
virtue of any applicable law or regulation for the effective operation of its
business and its performance under this Agreement;
(g) keep books, records and accounts of all transactions covered
by this Agreement and permit Vendor, its agents and representatives to examine
the same;
(h) commence sales and distribution of the Products as soon as
reasonably practicable following execution of this Agreement;
(i) not do anything to prevent the sale, or development of sales,
of the Products in the Territory;
(j) obtain an adequate number of sufficiently qualified staff to
enable Distributor to promptly and efficiently perform its obligations under
this Agreement;
(k) keep Vendor promptly informed of any complaint or dispute
concerning the Products supplied by Distributor;
(l) conduct Distributor's business in an efficient, responsible,
and ethical manner so as to enhance and support the reputation and goodwill of
the Products in the Territory;
(m) conduct Distributor's business in accordance with all laws
applicable in the Territory. Distributor must immediately notify Vendor in
writing if any law or regulation of a relevant Territory prevents it from
complying fully with the terms of this Agreement; and
(n) refrain from producing, selling, licensing or distributing
any products which are, in Vendor's sole judgment, directly competitive with the
Products;
(o) create an End User License Agreement for distribution of the
Products and Services to the Japanese market that is materially identical to the
sample XXXX that is provided in EXHIBIT A as reference, taking common hap laws
and practices in consideration when creating the Japanese End User License
Agreement.
3.2 SOLICITING LICENSES FOR SOFTWARE. Distributor shall have the right
to negotiate with prospective End Users and solicit the sub-licensing of the
Software. In the event that a prospective End User wishes to sub-license
Software, Distributor shall:
Page 4 of 20
(a) Enter into a sub-license agreement for the Product with such
End User only upon the terms of the End User License Agreement;
(b) negotiate with such End User and, if required by such End
User, propose changes to the End User License Agreement, provided that such
proposed changes shall be subject to Vendor's prior written approval in its
reasonable discretion; and
(c) forward to Vendor information regarding each End User,
including the following:
(i) the Software to be licensed;
(ii) the name and site address of the End User;
(iii) the name, address and telephone number of a contact
person or authorized representative of the End User;
(iv) the serial number of the central processing unit on which
the licensed Software will run or, in the case of a network license,
the number of licensed users;
(v) any proposed changes to the End User License Agreement.
3.3 REVERSE ENGINEERING. Distributor shall not translate, disassemble
or reverse engineer the Products, in whole or in part.
4. MAINTENANCE AND SUPPORT
4.1 SUPPORT SERVICES. As between Vendor and Distributor, Distributor
shall be responsible for providing End Users with Level One Support Services for
the Software, as set forth in EXHIBIT E attached hereto. Vendor shall provide
Distributor with Level Two Support Services for the Software, as set forth in
EXHIBIT E.
4.2 TRAINING. Vendor shall arrange at least one training course for
each major release or version upgrade of the Product that may be attended by
Distributor's and its sub-distributors' sales and/or technical personnel. These
courses shall take place at Vendor's principal place of business first above
written and shall include training on the operation of Product, sales training,
and technical training increasing the ability of Distributor and its
sub-distributors to provide sufficient technical support for their customers who
purchase Product. The cost of conducting these training courses shall be borne
by Vendor; provided, however, that Distributor and sub-distributors shall bear
the traveling and lodging expenses for their respective personnel.
5. CHANGES IN SPECIFICATIONS
Vendor reserves the right from time to time to change the specifications of the
Products. Vendor shall advise Distributor of any proposed changes in
specifications at least ninety (90) days before such changes in specifications
or designs are commercially released.
6. OWNERSHIP OF INTELLECTUAL PROPERTY
Vendor or its suppliers shall retain ownership of all Intellectual Property
Rights embodied in the Products and the Trademarks. Except as provided herein,
Distributor is not granted any rights to any Intellectual Property Rights with
respect to any Product.
7. CONFIDENTIAL INFORMATION
Each party may be exposed to the other party's Confidential Information, Each
party agrees that during the Term, and for a period of one (1) year following
the Term, it shall use the other party's Confidential Information solely for
purposes of performing its obligations and/or exercising its rights under this
Agreement, and shall not disclose to any third party any Confidential
Information of the other party without prior written consent of such other
party. Each party may disclose the other party's Confidential Information only
to its employees as is reasonably necessary to allow such party to perform under
this Agreement and to obtain the benefits thereof, provided that each such
employee is under a written obligation of nondisclosure which protects the other
party's Confidential Information under terms substantially similar to those
herein.
8. ORDERS; SHIPPING; CANCELLATON
Page 5 of 20
8.1 ORDERS. The terms and conditions of this Agreement shall apply to
any and all orders submitted to Vendor. If accepted by Vendor, Vendor shall
fulfill each order placed by Distributor within 30 days or less, or else give
notice as to why fulfillment will take longer.
8.2 SHIPPING. All shipments shall be made FOB Vendor's distribution
center. Provided, however, in Vendor's discretion, Vendor may provide for the
downloading of the Software by Distributor (or directly by the End User) and, if
downloaded by Distributor, Distributor shall only download the permitted number
of copies, and shall put any markings or labels on the medium containing the
Software as Vendor shall require. Delivery shall be deemed complete and risk of
loss or damage to the Products shall pass to Distributor upon Vendor's delivery
of Products to the first carrier or, if applicable, when downloaded. Distributor
shall instruct Vendor in writing as to which carrier Vendor should use to
transport Products ordered by Distributor. If Distributor has not so instructed
Vendor at the time of the order, Vendor may select the carrier. Distributor
shall pay all costs of transportation, reasonable insurance, export and import
fees, customs brokerage expenses and similar charges.
8.3 ACCEPTANCE. Distributor shall, within seven (7) days after
delivery, inspect the Product(s) to confirm that the Product(s) are not
defective and conform to the Vendor's applicable warranty, the terms of this
Agreement and Distributor's order. In the event that Distributor notifies Vendor
of defective or non-conforming Products under this section, Vendor shall repair
or replace such Products, or refund the purchase price for such Products to
Distributor, at Distributor's sole election.
8.4 CANCELLATION AND RESCHEDULING. Distributor shall not reschedule or
cancel any purchase order or portion thereof within three (3) business days of
the scheduled shipment date for such order ("FIRM PERIOD"). Distributor may
cancel or reschedule purchase orders prior to the Firm Period upon written
notice to Vendor.
9. PRICE; TAXES; PAYMENTS; REPORTS
9.1 PRICE FOR PRODUCTS. Vendor recognizes that Distributor may need to
do market research before appropriate pricing for Products and Services can be
set in Japan. Therefore, Vendor and Distributor agree that Distributor will have
the ability to establish Products and Services prices in Japan, as it best sees
fit, in order to maximize revenue, but that Vendor retains the final right to
approve or disapprove such pricing. All Products and Services revenue will be
split equally between Vendor and Distributor in a 50/50 ratio, and the money
will be remitted to Vendor to U.S. dollars based on the U.S. dollar-to-Japanese
yen exchange rate reports in THE WALL STREET JOURNAL on the payment date. In
addition, Vendor may, in its discretion, offer Distributor the rights to
sub-license other products of Vendor. If the Parties are able to agree upon
terms for the licensing of any such other products, they will amend this
Agreement accordingly. Vendor and Distributor also agree to review the 50/50
split, sometime prior to the end of the first year of this Agreement, to confirm
that such 50/50 split is equitable for both sides, and that they will work in
good faith to revise these terms in the event that either side feels it is not
equitable for them.
9.2 PRICE FOR SERVICES. Distributor shall pay monthly support fees in
advance for the Level Two Support Services, as such fees are set forth in
EXHIBIT C ("SUPPORT FEES"). Vendor may not increase the monthly Support Fees
charged to Distributor during any Contract Year by more than ten percent (10%)
of the then-current Support Fees.
9.3 TAXES. In addition to any payments due to Vendor under this
Agreement, Distributor shall pay any sales, use, excise, import, export or
value-added tax not based on Vendor's net income.
9.4 PAYMENTS. Distributor shall remit fifty percent (50%) of any
payment it or its sub-distributor's receipt of such payment. Payment for the
Level Two Support Services shall be due by the tenth day of each calendar month.
9.5 REPORTS. Distributor shall provide Vendor a quarterly report of its
sub-licensing activity. Such reports shall include without limitation, the name
and address of each End User that entered into a license for the Product during
such quarter, the license fees charged and received during such quarter and such
other information that Vendor may reasonably request. Distributor shall
communication to Vendor any recurring material problems with the Products
encountered by customers of Distributor.
9.6 STOCK INCENTIVE. Restricted Shares (as such term is defined in the
Stock Purchase Agreement) held by PPOL, Inc., subject to the terms of that
certain Common Stock Purchase Agreement entered into between Vendor and PPOL,
Inc. contemporaneously herewith (the "STOCK PURCHASE AGREEMENT"), shall vest and
become Unrestricted
Page 6 of 20
Shares (as such term is defined in the Stock Purchase Agreement) at the rate of
one hundred (100) shares for each $10 million in Gross Revenue received by
Vendor from Distributor's licensing or sub-licensing of Products hereunder.
10. WARRANTY
10.1 PRODUCTS. Vendor warrants the Products to End Users pursuant to
the terms and conditions of the End User License Agreement as set forth in
EXHIBIT A. Vendor represents, warrants and covenants to Distributor that: (a)
Vendor has the right to grant the rights and licenses contemplated by this
Agreement, without the need for any licenses, releases, consents, approvals or
immunities not yet granted; (b) the media on which any Products are delivered to
Distributor shall be free from material defects in workmanship and materials;
(c) the Products shall operate in accordance with the Documentation and other
specifications therefore for a period of sixty days from delivery to
Distributor; (d) neither the Products nor Distributor's exercise of its rights
under this Agreement infringe, misappropriate or violate any U.S. patent,
trademark, copyright, privacy or publicity rights, or other rights of any third
party, or any law, rule or regulation promulgated by any government or
regulatory body; (e) the Products do not contain any material bugs or defects
and do not contain or make available any viruses, worms, Trojan horses, web
bugs, time bombs, "spyware" or other harmful or invasive code or components; and
(f) Vendor has not made and shall not make any commitments inconsistent with
Distributor's rights under this Agreement.
10.2 SERVICES. Vendor represents, warrants and covenants to Distributor
that the Level Two Support Services shall be performed in a professional and
workmanlike manner consistent with the highest industry standards.
10.3 DISTRIBUTOR WARRANTY SERVICE. For Errors or defects in Software
discovered during the applicable warranty period, Distributor and Vendor shall
provide technical support as described in Section 4 ("Maintenance and Support").
10.4 Distributor hereby represents and warrants to Vendor as follows:
(a) It has no conflicts of interest in entering into this
Agreement and that by entering into this Agreement it is not violating or
beaching any duty or obligation it may have to any third party.
(b) It has not made and promises not to make, any payment to a
public official as defined by the United States Foreign Corrupt Practices Act or
other applicable laws. Distributor further represents that it is aware of the
applicable United States governmental regulations governing bribery, agency, and
government purchases and any other relevant regulations and agrees to comply
with such rules and regulations.
(c) Distributor agrees it will comply, at its own expense, with
any requirements to obtain regulatory approvals of, and to make any filings and
registrations related to , this Agreement, the End User Agreement or the
transaction contemplated herein, that may be necessary, or beneficial to
Vendor's rights in the Territory.
10.5 DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES (AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS) ANY
OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES THAT
MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
11. CONSEQUENTIAL DAMAGES WAIVER
EXCEPT FOR VENFOR'S AND DISTRIBUTOR'S RESPECTIVE INDEMNITY OBLICATIONS SET FORTH
IN SECTION 13, AND FOR ANY BREACH BY DISTRIBUTOR OF ITS CONFIDENTIALITY
OBLIGATIONS WITH RESPECT TO THE SOURCE CODE OR ITS OBLIGATIONS UNDER SECTION
3.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD
PARTY UNDER ANY LEGAL THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOSS OF PROFITS, REVNEUE
OR BUSINESS, EVEN IS SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
12. LIMITATION OF LIABILITY
NOTHWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AND TO THE FULLEST
EXTENT ALLOWED UNDER APPLICABLE LAW, EXCEPT FOR DISTRIBUTOR'S BREACH OF
CONFIDENTIALITY WITH RESPECT TO THE SOURCE CODE OR OF ITS OBLIGATION UNDER
Page 7 of 20
SECTION 3.3, AND EXCEPT FOR VENDOR'S AND DISTRIBUTOR'S RESPECTIVE INDEMNITY
OBLIGATIONS SET FORTH IN SECTION 0, EACH PARTY'S AGGREGATE LIABILITY TO THE
OTHER PARTY OR ANY THIRD PARTY FOR CLAIMS RELATING TO THIS AGREEMENT, WHETHER
FOR BREACH, NEGLIGENCE, INFRINGEMENT, IN TORT OR OTHERWISE, SHALL BE LIMITED TO
AN AMOUNT EQUAL TO THE TOTAL PAYMENTS MADE BY DISTRIBUTOR TO VENDOR IN THE MOST
RECENT FULL CALENDAR YEAR PRECEDING EITHER PARTY'S INITIAL NOTICE TO THE OTHER
PARTY OF ANY CLAIM OR POTENTIAL CLAIM HEREUNDER.
13. INDEMNITY
13.1 VENDOR INDEMNITY. Vendor shall defend, indemnify and hold
Distributor harmless against any and all damages, cost, liabilities, expenses
(including reasonable attorneys' fees) and settlement amounts incurred in
connection with any suit, claim or action by any third party resulting from any
breach (or any claim that, if true, would constitute a breach) of Vendor's
representations, warranties or covenants set forth in Section 9.1 above;
provided, however, Vendor's obligation to indemnify Distributor hereunder is
subject to Distributor: (a) giving Vendor prompt written notice of any such
claim; (b) giving Vendor control over the defense and settlement of any such
claim; (c) providing reasonable cooperation for the defense of any such claim,
at Vendor's expense; and (d) not entering information any settlement or
compromise of any such claim without Vendor's prior approval.
13.2 DISTRIBUTOR INDEMNITY. Distributor agrees to defend, indemnify and
hold harmless Vendor from any and all claims, liabilities, judgments, penalties,
losses, costs, damages, and expenses, including without limitation reasonable
attorneys' fees and settlement amounts incurred in connection with any suit,
claim or action by any third party resulting from, arising by reason of or in
connection with any act by Distributor under or in violation of this Agreement
or any act or omission of any sub-distributor , including, but not limited to,
the promotion, distribution, exploitation, advertising, offering for sale, sale,
or use of the Products or use of the Trademarks, except if such claims,
liabilities, judgments, penalties, losses, costs, damages and expenses are
directly caused by Vendor's negligence or willful misconduct or result from
breach of Vendor's warranty contained in the End User Agreement. Distributor
will have the right to defend any action or proceeding with attorneys of its own
selection provided that such counsel is reasonably acceptable to Vendor.
Distributor's obligation to defend Vendor hereunder is subject to Vendor: (a)
giving Distributor prompt written notice of any such claim; (b) giving Vendor
control over the defense and settlement of any such claim; (c) providing
reasonable cooperation for the defense of any such claim without Distributor's
prior approval.
14. TERM AND TERMINATION
14.1 TERM. The term of this Agreement shall commence as of the
Agreement Date and continue, unless earlier terminated as set forth herein, for
five (5) years thereafter ("INITIAL TERM") until ending upon the fifth (5th)
anniversary of the Effective Date. Subsequently, this Agreement shall
automatically renew for successive one (1) year periods (each, a "RENEWAL
TERM"), unless, at least thirty (30) days prior to the end of the then-current
term, either party gives the other party written notice of is intent not to
renew this Agreement, or unless earlier terminated in accordance with this
Agreement. The Initial Term and all Renewal Terms, if any, shall be collectively
referred to as the "Term."
14.2 TERMINATION. Either party may terminate this Agreement, without
cause, upon sixty (60) days written notice to the other.
14.3 EFFECT OF TERMINATION.
(a) Following termination of this Agreement, Distributor may
distribute its inventory of the Products, and may continue using the Trademarks
for such purpose, until all such inventory has been distributed.
(b) At such time as Distributor has distributed all of its
inventory pursuant to paragraph (a) above, Distributor shall return to Vendor
(or destroy, at Vendor's election) all Software (and all copies and extracts
thereof) and Vendor's Confidential Information then in the possession or under
the control of Distributor and its employees or agents; (iii) Vendor shall
return to Distributor (or destroy, at Distributor's election) all Distributor's
Confidential Information then in the possession or under the control of Vendor
and its employees or agents; and (iv) Distributor shall cease all use of the
Trademarks, and shall, if any form of the Trademarks is used in its name, change
its name.
Page 8 of 20
(c) Neither Vendor nor Distributor shall be liable to the other,
because of such expiration or termination, for compensation, reimbursement or
damages; (i) for the loss of prospective profits, anticipated sales or goodwill;
(ii) on account of any expenditures, investments or commitments made by either;
or (iii) for any other reason whatsoever based upon the result of such
expiration or termination.
(d) The provisions of the following Sections shall survive any
expiration or termination of this Agreement: 6 ("Ownership of Intellectual
Property"), 6 ("Confidential Information"), 10.5 ("Disclaimer"), 11
("Consequential Damages Waiver"), 12 ("Limitation of Liability"), 13
("Indemnity"), 14.3 ("Effect of Termination"), 15 ("Source Code Delivery"), and
16 ("Miscellaneous Terms").
15. SOURCE CODE DELIVERY
15.1 ESCROW OF SOURCE CODE. If Distributor's desires, the source code
for Product will be escrowed with a reputable agent who will make the code
available to Distributor's in the event that Vendor either files for bankruptcy,
ceases to do business, or otherwise becomes incapable of functioning as an
operational company. Vendor is already using an escrow agent at the request of
existing customers, so if Distributor wishes, Distributor's name may be added to
the existing escrow account at Distributor's sole discretion and cost.
16. MISCELLANEOUS TERMS
16.1 RELATIONSHIP OF THE PARTIES. This Agreement shall not be construed
as creating an agency, partnership, joint venture or any other form of
association, for tax purposes or otherwise, between the parties, and the
parties, shall at all times be and remain independent contractors. Except as
expressly agreed by the parties in writing, neither party shall have any right
or authority, express or implied, to assume or create any obligation of any
kind, or to make any representation or warranty, on behalf of the other party or
to bind the other party in any respect whatsoever.
16.2 IMPORT/EXPORT. Each party shall comply with all applicable foreign
and domestic laws and regulations relating to the importation or exportation of
the Products.
16.3 GOVERNING LAW, JURISDICTION, AND VENUE. This Agreement shall be
governed by and construed in accordance with the laws of the State of Florida,
U.S.A., without references to its conflicts of law provisions. Any dispute
regarding this Agreement shall be subject to the exclusive jurisdiction of the
state courts in and for Xxxxx County, Florida, U.S.A. (or, if there is a federal
jurisdiction, the United States District Court with jurisdiction for Xxxxx
County, Florida). The parties hereby irrevocably agree to submit to the personal
and exclusive jurisdiction and venue of the aforementioned courts. This
Agreement shall not be governed by the United Nations Convention on Contracts
for the International Sale of Goods, the application of which is hereby
expressly excluded.
16.4 FORCE MAJEURE. Neither part shall be liable under this Agreement
because of any failure or delay in the performance of its obligations on account
of strikes, shortages, riots, inability to obtain export clearance from any
applicable governmental entity, fire, flood, storm, earthquake, acts of God,
hostilities or any other cause beyond its reasonable control (a "FORCE MAJEURE
EVENT"), provided that the non-performing party provides prompt written notice
of any delay or default and cooperates to minimize the impact of such delay. If
the period of nonperformance exceeds fifteen (15) days from receipt of notice of
the Force Majeure Event, the party whose performance has not been affected may
terminate this Agreement, effective immediately upon written notice to the other
party.
16.5 NOTICES. Any notice, request, demand or other communication
required or permitted hereunder shall be in writing, shall reference this
Agreement and shall be deemed to be properly given: (a) when delivered
personally; (b) when sent by facsimile, with written confirmation of receipt by
the sending facsimile machine; (c) five (5) business days after having been sent
by registered or certified mail, return receipt requested, postage prepaid; or
(d) two (2) business days after deposit with a private industry express courier,
with written confirmation of receipt. All notices shall be sent to the address
set forth in the first paragraph of this Agreement and to the notice of the
person executing this Agreement (or to such other address or person as may be
designated by a party by giving written notice to the other party pursuant to
this Section).
16.6 ASSIGNMENT. Vendor shall not assign, transfer, delegate or
otherwise dispose of this Agreement or any right or obligation hereunder
(whether by express transfer, operation of law or otherwise) without the prior
written consent of Distributor. Distributor shall be entitled to assign,
transfer, delegate or otherwise dispose of, whether
Page 9 of 20
voluntarily or involuntarily, by operation of law or otherwise, this Agreement
and any of its rights or obligations under this Agreement. Any attempted or
purported assignment or other transfer not complying with the foregoing shall be
null and void. Subject to the forgoing, this Agreement shall insure the benefit
of and bind the successors and assigns of the parties.
16.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which together shall constitute a single agreement.
16.8 HEADINGS. The various section headings are inserted for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement or any section thereof.
16.9 SEVERABILITY. If any term, provision, covenant or condition of
this Agreement is held by a court or submittal panel of competent jurisdiction
to be invalid, void or unenforceable, the remainder of the provisions hereof
shall remain in full force and effective and shall in no way be effected,
impaired or invalidated.
16.10 CONSTRUCTION. This Agreement shall be deemed to have been drafted
by all parties and, in the event of a dispute, no party hereto shall be entitled
to claim that any provision should be constructed against any other party by
reason of the fact that it was drafted by one particular party.
16.11 ENTIRE AGREEMENT. This Agreement and the Exhibits hereto contain
the entire understanding of the parties with reject to the subject matter of
this Agreement and merges and supersedes all prior and contemporaneous
agreements and understandings between the parties, whether oral or written, with
respect to the subject matter of this Agreement. Any wavier, modification or
amendment of any provision of this Agreement shall be effective only in writing
and signed by the authorized representatives of both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Exclusive Distribution
Agreement as of the date first written above.
VENDOR: DISTRIBUTOR:
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxx
------------------------------ -------------------------------
Name: Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxx
---------------------------- -----------------------------
Title: President Title: C.E.O.
---------------------------- -----------------------------
Date: May 24, 2004 Date: May 24, 2004
---------------------------- -----------------------------
Page 10 of 20
EXHIBIT A
[DISTRIBUTOR AGREEMENT PLEASE NOTE: This XXXX is provided as a reference
document ONLY; see Section 3.1 (o). The Exhibits mentioned in the XXXX have been
removed so as not to become confused with the Exhibits required as part of this
Distributor Agreement.]
END USER LICENSE AGREEMENT
BRIDGEGATE DEPARTMENTAL SOFTWARE SITE LICENSE AGREEMENT
AGREEMENT effective as of this ___day of ___ (the "Effective Date") by
and between Objective Innovation, Inc. with offices at 0000 Xxxxxxxxxx Xxx Xxxx,
Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 ("Licensor") and _____________________
with offices at ___________________________________________ ("Licensee").
1. LICENSEE.
1.1 In accordance with this terms herein, Licensor grants to Licensee,
and Licensee accepts from Licensor, based upon continued good standing per
Exhibit C "Terms & Conditions", a proposal non-exclusive and not-transferable
licensee to use (but not to copy or modify except as expressly permitted herein)
(i) the current version of Licensor's BridgeGate Software, (ii) any
modifications, customizations, deliverables, error corrections, upgrades,
updates delivered under the terms of this Agreement by Licensor (collectively
the "Software"). The initial version of the Software to be licensed herein is
described on Exhibit A and Licensor's specifications are published on Licensor's
web site at xxx.xxxxxxxxxxxxxxxx.xxx (or such other web site as Licensor shall
notify Licensee from time to time).
1.2 The Software may be installed on up to three (3) servers and shall
be used by Licensee only on the equipment and at the location(s) identified in
Exhibit B. Software may be licensed to additional servers according to the price
schedule outlined in Exhibit C. Licensee may transfer the Software to other
equipment, or move the equipment and the Software to other locations owned and
operated by Licensee, with Licensor's prior written consent, such consent not to
be unreasonably withheld or delayed. Licensee may use only one copy of the
Software in production at any one time, but may use as many additional copies of
the software for testing and development instances as required. Licensee may
also use one additional copy of Software for Licensee's back up and disaster
recovery purposes, provided that; all Software instances remain in Licensee's
back up and disaster recovery purposes, provided that all Software instances
remain in Licensee's custody and control at all times, that Licensee notifies
Licensor in writing of the location of such additional copies (should they be in
use at a different location), and provided further that such additional copies
(should they be in use at a different location), and provided further that such
copies remain within the continental United States. The Software shall be used
only for the internal data processing needs of licensee's own business, which
shall include processing information received from and sent to Licensee's
vendors and suppliers in connection with Licensee's business. Licensee shall not
permit any third party to use the Software, or use the Software in the operation
of or to provide the services of a service bureau or any applications service
provider. The copy of the Software used in production may be temporarily
transferred to back-up equipment owned and operated by Licensee and located
within the continental United States if the particular equipment on which its
installed as permitted herein is inoperative for more than 48 hours, upon prior
written notice to Licensor.
1.3 Licensor also hereby grants to Licensee a non-exclusive,
no-transferable license contentious with the license in the Software, to use but
not to copy or modify, the Documentation. The Documentation shall consist of any
user guides, which are provided from time to time by Licensor to Licensee.
Page 11 of 20
1.4 Licensee acknowledges that the source code to the Software is not
to be delivered hereunder.
2. LICENSEE EQUIPMENT AND SECURITY REQUIREMENTS. LICENSEE AGREES TO OBTAIN
AND MAINTAIN THE EQUIPMENT AND SYSTEMS DESCRIBED IN EXHIBIT B, AND
AGREES TO EMPLOY AND MAINTAIN ALL SECURITY SYSTEMS AND PROTECTIONS
REQUIRED BY LAW FOR THE ENFORMATION TO BE PROCESSED UTILIZING THE
SOFTWARE, AS WELL AS SUCH SECURITY SYSTEMS AND PEOTECTIONS AS ARE
EXPRESSLY SET FORTH ON EXHIBIT B.
3. MAINTENANCE AND SUPPORT SERVICES.
a. Should Licensee choose optional "Maintenance and Support
Services", in consideration for timely "Maintenance and Support
Services" payments as set forth in Exhibit C. Licensor agrees to
provide to Licensee the Maintenance and Support Services described in
Exhibit E for the duration of the "Maintenance and Support Services"
term, renewable thereafter for successive one year terms ("Renewal
Year") upon mutual agreement of the parties. The Initial Maintenance
Service Term and each Renewal Year shall constitute the "Maintenance
Services Term".
b. To the extent that Licensee requests that Licensor provide
maintenance, error correction or other related services during the
Maintenance Services Term beyond those services provided for the
Maintenance and Support Fees, Licensor may provide such services
("Additional Services"), and Licensee shall compensate Licensor for all
such services at Licensor's then current hourly rates.
c. Its expressly understood by Licensee that Licensor shall
have the right to delegate its Installation, Customization, Training
Additional Services and/or Maintenance and Support Services obligations
hereunder to one or more service providers selected by Licensor from
time to time.
4. SOFTWARE OWNERSHIP
As between Licensee and Licensor, all right title and interest
(including rights of copyright and all other proprietary rights) in the Software
and Documentation (other than the licensee rights granted to Licensee herein)
and all copies and derivations thereof, and any and all extensions or changes to
the Software made by Licensee including the Permitted Adaptations), shall be
held by Licensor, including, without limitation, all results and proceeds of
Licensor's Maintenance and Support Services, Installation Services,
Customization Services, Training Services and Additional Services provided
hereunder. Licensee shall not sell, transfer, publish, disclose, display,
transmit, distribute, or otherwise make available the Software of copies thereof
to others except as expressly permitted herein. Licensee agrees to secure and
protect from misuse, theft, unauthorized use or damage the Software, each
component thereof delivered hereunder, and the Documentation, in a manner
consistent with the maintenance of Licensor's rights therein and as otherwise
required herein or by law and to take appropriate action through instruction or
agreement with its employees or consultants who are permitted access to each
program or software product to satisfy its obligations hereunder.
5. INSTALLATION. IN ACCORDANCE WITH THE INSTALLATION SCHEDULE SET FORTH ON
EXHIBIT F, SHOULD LICENSEE CHOOSE TO OPTIONAL "MAINTENANCE AND SUPPORT
SERVICES" LICENSOR SHALL PRIVIDE SERVICES TO INSTALL THE SOFTWARE ON
THE EQUIPEMNT DESCRIBED ON EXHIBIT B FOR NO ADDITIONAL CHARGE,
OTHERWISE LICENSOR SHALL PROVIDE INSTALLATION SERVICES ON A TIME AND
MATERIALS BASIS (THE "INSTALLATION SERVICES"). WHEN LICENSOR HAS
DETERMINED THAT THE INSTALLATION IS COMPLETE, LICENSOR SHALL NOTIFY
LICENSEE. THE INSTALLATION SCHECULE MAY BE MODIFIED FROM TIME TO TIME
BY MUTUAL AGREEMENT OF THE PARTIES. LICENSEE ACKNOWLEDGES THAT
SUCESSFUL INSTALLATION OF THE SOFTWARE PRUSUANT TO THIS AGREEMENT SHALL
REQUIRE LICENSEE'S FULL AND GOOD FAITH COOPERATION, INCLUDING BY
PROVIDING LICENSOR WITH TIMELY ACCESS TO LICENSEE'S PREMISES, EQUIPMENT
AND SYSTEMS, AND THE COOPERATION OF LICENSEE PERSONNEL.
6. CUSTOMIZATION.
6.1 By Licensor.
6.2 Upon request from Licensee, Licensor shall develop interfaces for
use of the Software by Licensee in exchanging information with Licensee's
vendors and suppliers and such other customizations as
Page 12 of 20
Licensee and Licensor may mutually agree upon. Licensor shall provide such
customization services to mutually agreed upon specifications and is accordance
with mutually agreed upon timeline at the rates described in Exhibit D.
Exceptions to published rates may be specified in Exhibit C. Any work not
clearly defined in Exhibit C shall be billed at published rates as specified in
Exhibit D.
6.3 By Licensee. Licensee is permitted to utilize the Software in
accordance with the Documentation to create the Adaptors, Plug-in Codes and
Templates described on Exhibit A, each of which shall be referred to herein as
"Permitted Adaptations."
6.4 All such customizations described in Paragraphs 8(a) and (b) above
shall become part of the Software and governed by the terms of this Agreement.
7. CONFIDENTIALITY.
7.1 The parties hereby agree to treat the other party's Confidential
Information with at least the degree of protection each such party provider its
own confidential information and at least the protection required by law.
7.2 Each party shall provide access to the other party's Confidential
Information only to those of such party's employees who have a need for such
access in order to perform their responsibilities under this Agreement (and in
the case of Licensee those employees who need access to the Software in order
for Licensee to utilize it for Licensee's business as permitted to its
contractors, service providers and other third parties as necessary to permit
such contractors and service providers to carry out their responsibilities to
Licensor. Neither party shall provide to third parties any access to the other
party's Confidential Information unless such access is needed in order for such
party perform their obligations under this Agreement and such third parties have
agree in writing to treat such Confidential Information as confidential in
accordance with this Agreement and provided further that such party agrees to be
responsible for any unauthorized use or disclosure by such third party of the
other party's Confidential Information.
7.3 Confidential Information shall include any information marked by a
party as confidential when disclosed, or If disclosed orally, which is followed
up with a reasonable time with a written statement informing the recipient of
its confidentiality, Confidential Information of Licensee shall include any date
on the systems of Licensee to which Licensor is given access in performing its
responsibilities hereunder and Confidential Information of Licensor shall
include the Software, all components thereof, the Documentation, any source code
of the Software, the terms, of this Agreement, and marketing and financial
information about Licensee and its affiliates.
7.4 Notwithstanding anything to the contrary set forth above,
Confidential Information shall not include any information which is (i) publicly
known; (ii) independently developed by the receiving party without any use of
and by employees who had no access to, the confidential information of the other
party; or (iii) which is received from a third party who is under no obligation
of confidentiality to the owner of the confidential information.
7.5 Neither party shall be in breach of this Agreement if they disclose
the Confidential Information of the other party in response to a court order,
subpoena or similar legal requirement, provided that they disclose only the
information required to be disclosed and notify the other party of such
compelled disclosure and cooperate with such other party's efforts, if any, to
secure a protective order for such information.
7.6 The parties recognize that disclosure as prohibited herein of any
such confidential information may cause irreparable injury to the other party,
which is not compensable in monetary damages or where monetary damages may be
inadequate or impossible to measure. Each party may seek injunctive relief
against the breach or threatened breach of any of the forgoing confidentiality
undertakings, in addition to any other legal remedies, which may be available.
Licensor may terminate this Agreement immediately, including all license right
granted herein, in the event of any breach of the confidentiality obligations
set forth herein.
8. LIMITED WARRANTIES AND LIMITED LIABILITY.
Page 13 of 20
8.1 Licensor warrants that, for a period of ninety days after Licensor
notifies Licensee that the Software has been installed, the Software, once
installed, will conform in all material respects, to Licensor's then current
published specifications. With regard to other deliverables, such as
modifications or customizations delivered hereunder by Licensor, Licensor
warrants that for a period of ninety days after delivery (or after installation
if Licensor installs such deliverable), such deliverable shall conform to
Licensor's specifications therefore, it being understood that this latter
warranty shall not require Licensor to fix errors without charge that appear in
the underlying Software to the extend such Software was installed more than
ninety days earlier, even if such error in the Software causes the new
deliverable to operate incorrectly. The foregoing ninety-day periods of warrants
shall be referred to herein as the "Warranty Period".
8.2 Licensee shall notify Licensor in writing, within five days
Licensee's discovery during the applicable Warranty Period of any future of
Software (or deliverable) to conform to the warranty stated above in Section
10(a) (a "Nonconformity"). If Licensor is able to reproduce the Nonconformity,
Licensor shall (i) use commercially reasonable efforts to promptly correct such
Nonconformity; (ii) if (i) does not result in elimination of the Nonconformity,
use commercially reasonable efforts to replace the Software or deliverable with
copies of the Software or deliverable that do not result in the Nonconformity;
(iii) with regard to a Nonconformity in the underlying Software, if (i) and (ii)
do not result in elimination of the Nonconformity, terminate this Agreement and
license and return to Licensee all amounts paid by Licensee hereunder; or (iv)
with regard to a Nonconformity in any subsequent deliverable, if (i) and (ii) do
not result in elimination of the Nonconformity, terminate the license rights for
that particular deliverable and refund to Licensee an allocated amount of any
license fees paid hereunder for that deliverable (including additional
installation fees paid to install or customization fees paid to create such
deliverable).
8.3 THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY
LICENSOR. LICENSOR MAKES AND LINSEE RECEIVES NO WARRANTY, EXPRESS OR IMPLIED,
AND THERE ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABLITY AND FITNESS
FOR A PARTICULAR PURPOSE. LICENSOR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS
OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL
DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE
STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF LICENSOR
FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR
PERFORMANCE OF THE SOFTWARE AND ANY OTHER DELIVERABLES OR SERVICES PROVIDED
HEREUNDER.
8.4 If any modifications are made to the Software by other than
Licensor (other than Permitted Adaptations made in accordance with the
Documentation), the forgoing warranty set forth in Paragraph 10(a) shall not
apply.
8.5 Notwithstanding anything to the contrary set forth in this
Agreement, Licensee agrees that Licensor's liability under this Agreement, or
arising out of contract, negligence, strict liability in court or warranty shall
not exceed any amounts paid to Licensor by Licensee under this Agreement.
9. INDEMNITIES.
9.1 Licensor shall defend, indemnify and hold harmless Licensee against
any claims that the Software delivered hereunder infringes any copyright,
patent, or other proprietary right of a third party, provided that, (i) Licensee
notifies Licensor promptly of any such claim, (ii) Licensee turns over to
Licensor the sole right to control the defense and settlement of such claim with
counsel selected by Licensor; and (iii) Licensee fully cooperates in connection
with such defense. In no event shall Licensee settle or compromise any such
claim, lawsuit or proceeding without Licensor's prior written approval. If, as a
result of any such infringement claim, Licensee is enjoined from using the
Software, or if Licensor believes that the Software is likely to become the
subject of a claim of infringement, Licensor or its option and expense may
procure the right for Licensee to continue to use the Software, or may replace
or modify the Software so as to make it non-infringing. If neither of these two
options is reasonably practicable Licensor may terminate
Page 14 of 20
the license granted herein on written notice and in such case shall refund to
Licensee the unamortized portion of the License Fees paid hereunder (based on
four years straight line depreciation, such depreciation to commence on the
Effective Date). The foregoing states the entire liability of Licensor with
respect to infringement claims related to the Software.
9.2 Licensor shall not be obligated to indemnify Licensee under
Paragraph 11(a) above if (i) the infringement claims would have been avoided or
if there would be no judgment of infringement, if Licensee had installed an
upgrade, error correction or update that was offered to Licensee without charge
(other than changes for Maintenance and Services Fees or Installation Fees);
(ii) the claim is based on use of the Software with equipment of other software
not approved by Licensor; (iii) the claim is based on modification of the
Software by other than Licensor (other than Permitted Adaptations made by
Licensee in accordance with the Documentation and the Agreement).
10. TRADING. LICENSOR SHALL PROVIDE THE TRAINING SET FORTH ON EXHIBIT G IN
THE AMOUNTS AND IN ACCORDANCE WITH THE SCHEDULE SET FORTH THEREON. THE
PARTIES MAY AGREE UPON ADDITIONAL TRAINING FROM TIME TO TIME.
11. TERM AND TERMINATION.
11.1 Licensor shall have the right to terminate this Agreement (and the
license rights granted herein):
(a) immediately on notice to Licensee in the event that the
confidentially obligations of Licensee are violated or in the event
Licensee (A) terminates or suspends its business; (B) becomes subject
to any bankruptcy or insolvency proceeding under Federal or state
statute or (C) becomes insolvent or becomes subject to direct control
by a trustee, receiver or similar authority;
(b) upon ten days prior written notice to Licensee in the
event Licensee fails to pay any amounts when due, and fails to pay such
overdue amounts prior to the expirations of such ten day period; and
(c) upon thirty days prior written notice to Licensee in the
event Licensee violates any other provision of this Agreement and fails
to cure such breech prior to the expiration of the thirty-day period.
11.2 In the event of termination of this Agreement, the license rights
granted herein shall terminate and Licensor shall have the right to take
immediate possession of the Software and Documentation and all copies wherever
located, without demand or notice. Within five (5) days after termination of
this Agreement, Licensee with return to Licensor the Software in the form
provided by Licensor and as modified by the Licensee, or upon request by
Licensor shall destroy the Software and all copies, and certify in writing that
they have been destroyed. Without limiting any of the above previsions, in the
event of termination of this Agreement and the license rights granted herein,
Licensee shall continue to be obligated for any payments due for services
rendered or use of the Software made prior to the date of termination.
Termination of this Agreement shall be in addition to and not in lieu of any
equitable remedies available to Licensor.
12. GENERAL
12.1 Licensor may publicize the fact that Licensee is a customer of
Licensor and licensee of the Software.
12.2 The parties agree that this is the complete and exclusive
statement of the Agreement between the parties, which supersedes and merges all
prior proposals, understandings and all other agreements, oral and written,
between the parties relating to this Agreement. This Agreement may not be
modified or altered except by written instrument duly executed by both parties.
12.3 Dates or times by which licensor is required to make performance
under this license shall be postponed automatically to the extant that Licensor
is prevented from meeting them by causes beyond its reasonable control,
including events of force majeure. Without limiting
Page 15 of 20
Licensor's remedies hereunder. Licensor shall be entitled to suspend performance
of its obligations under this Agreement in the event of nonpayment by Licensee.
12.4 This Agreement and performance hereunder shall be governed by the
laws of the State of Florida. The parties hereby consent to the exclusive
jurisdiction of the state and federal courts located in Xxxxx County, Florida,
for the resolution of their disputes, and the parties to hereby waive any
objection thereto based on inconvenient forum.
12.5 If any provision of this Agreement is invalid under any applicable
statute or rule of law, it is to that extent to be deemed omitted. The
provisions of Paragraph 6, 9, 10, and 11 and such other provisions which by
their plain meaning are intended to survive expiration of termination of this
Agreement, shall survive termination or expiration of this Agreement.
12.6 Licensee may not assign, delegate or sub-license this Agreement or
any of its rights, duties and obligations set forth herein, in whole or in part,
without the prior written consent of Licensor. Licensor may assign this
Agreement to any affiliate of Licensor, may assign this Agreement to any entity
that acquires all or substantially all of its assets, whether through merger,
consolidation, sale or other transfer or by operation of law, and may delegate
certain of its service obligations to services providers selected by Licensor
from time to time, including, without limitation, the Installation, Training,
Customization, and Maintenance and Support Services. For purposes of this
Agreement, an affiliate of Licensor is any entity that is controlled by,
controls, or is under common control with Licensor or its Principals.
12.7 The waiver or failure of Licensor or Licensee to exercise in any
respect any right provided by herein shall not be deemed a waiver of my further
right hereunder.
AGREED:
LICENSOR LICENSEE
Name: Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxx
--------------------------------- ----------------------------
(Print) (Print)
Address: 0000 Xxxxxxxxxx Xxx Xxxx Address:
--------------------------------- ----------------------------
Xxxxx 000, Xxxxxxxxxxxx, XX 00000 ----------------------------
Signature: /s/ Xxxxx Sirdeva Signature: /s/ Xxxxx Xxxxxx
--------------------------------- ----------------------------
Title: President Title: CEO, PPOL, Inc.
--------------------------------- ----------------------------
Date: May 26, 2004 Date: May 26, 2004
--------------------------------- ----------------------------
Page 16 of 20
EXHIBIT B
PRODUCTS
Software: BridgeGate Client, BridgeGate Portal
Page 17 of 20
EXHIBIT C
PRODUCT PRICE LIST AND DISTRIBUTOR DISCOUNT/SUPPORT FEES
1. PRODUCT PRICE:
Enterprise Site License - $3.2 Million dollars. Price may be modified
by mutual consent of Vendor and Distributor, based on the circumstances
of the sale and the customer who is buying BridgeGate products and
services.
Departmental Site License - $320,000.00
Lease License (foreign version) - Price must be negotiated with Vendor
since too many variable.
2. SUPPORT FEES: (Level Two Support):
$70.00 per hour to Distributor
$120 per hour to End User on behalf of Distributor
Items 1 and 2 (above) that refer to the Site License Fee and Support Fees are
for reference only. The Product price(s) will be determined after Distributor
has completed its own marketing research. See section 9.1 for explanation.
Travel expenses for travel on behalf of Distributor to provide End User support
will be paid by End User or Distributor.
Travel expenses of behalf of Vendor will be paid by Vendor.
Travel expenses for initial training will be paid by Distributor, but
Distributor will not be charged for training. Training may be conducted either
in Japan or in Florida, at Distributor's option.
Page 18 of 20
EXHIBIT D
TRADEMARKS
BridgeGate
BridgeGate Client
BridgeGate Portal
TEI
Transformation & Exchange Infrastructure
The "telephone" for the 21st Century
Page 19 of 20
EXHIBIT E
MAINTENANCE AND SUPPORT SERVICES
LEVEL ONE SUPPORT
Distributor shall, at its own expense, provide all front-end customer support
and training relating to the use of the Products by End Users and Distributor
personnel ("LEVEL ONE SUPPORT") for any and all unites of the Products marketed
and distributed by Distributor, including, without limitation, reasonable
telephone, fax and e-mail support during Distributor's normal business hours,
including without limitation, all customer support required under the End User
Agreements, but NOT including the provision of any programming necessary to
correct Errors.
LEVEL TWO SUPPORT
Vendor shall provide to Distributor back-end theoretical support, tech
information, training, consulting, cooperation and assistance as may be
reasonably necessary for Distributor to provide Level One Support to End Users
and Distributor personnel, including, without limitation, as set forth in this
EXHIBIT E ("LEVEL TWO SUPPORT").
Page 20 of 20
