Exhibit 10.21
CONFIDENTIAL TRATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDATCTED AND HAVE BEEN SEPERATELY FILED WITH THE COMMISSION.
RESELLER AGREEMENT
THIS RESELLER AGREEMENT ("Agreement") is entered as of March ___, 2000 (the
"Effective Date") by and between XXXXXXX.XXX, INC. ("Xxxxxxx.xxx"), a Delaware
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corporation, with its principal place of business at 000 Xxxxxxxx Xxxxxx,
Xxxxxxx Xxxx, Xxxxxxxxxx 00000, and Samsung SDS Co., Ltd. ("Samsung"), a Korea
corporation, with its principal place of business at 000-00, Xxxxxx-Xxxx,
Xxxxxxx-Xx, Xxxxx, Xxxxx 135-080, Korea.
SECTION 1. DEFINITIONS
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1.1 "Copy" means an exact copy of the software of the applicable Product
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in object code form only, together with an exact copy of the related
Documentation.
1.2 "Confidential Information" means information about either party's
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business or activities that is proprietary and confidential, which shall include
all business, financial, technical and other information of a party marked or
designed by such party as "confidential" or "proprietary;" or information which,
by the nature of the circumstances surrounding the disclosure, ought in good
faith be treated as confidential, including, without limitation, the specific
terms, pricing and fees set forth in this Agreement.
1.3 "Documentation" means Product related technical specification
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documentation provided by Xxxxxxx.xxx along with the applicable Product.
1.4 "End-Users" means a third party who acquires a Copy from Samsung
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solely for its own personal or internal use at its principal place of business
and not for resale or transfer to others and who have previously agreed in
writing or via a binding shrinkwrap or clickwrap license, to be bound by a
license agreement containing terms and conditions at least as restrictive as
those set forth for the applicable Product in the Reseller License Guide
attached as Exhibit B hereto.
1.5 "Intellectual Property Rights" means patent rights (including patent
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applications and disclosures), copyrights (including copyright applications),
trade secrets, moral rights, trademarks, know-how and any other similar rights
or intangible assets recognized under any laws or international conventions, in
any country or jurisdiction in the world.
1.6 "Marketing Materials" means any materials provided by Xxxxxxx.xxx for
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use in advertising, promotion, sales or marketing of the Product.
1.7 "Product" means the products and service offerings listed on the
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Product List in Exhibit A, together with the Documentation or other packaging
materials provided therewith by Xxxxxxx.xxx and includes any new releases, bug
fixes, patches, work-arounds or maintenance upgrades for the applicable Product
which are made generally available by Xxxxxxx.xxx to its customers at no
additional charge. Xxxxxxx.xxx reserves the right to change, modify or
discontinue any Product.
1.8 "License Fee" the monthly subscription fee payable for each license
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of the Product in order to use the Product.
1.9 "First Level Support" means all direct interaction with End-Users
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regarding (i) the use and operation of the Product, (ii) the intake and
classification of all End-User inquiries
Xxxxxxx.xxx, Inc PAGE 1
Proprietary and Confidential - For Intended Recipient Only
regarding suspected errors in the Product and (iii) the delivery to End-Users of
error corrections, work-arounds, new releases and upgrades that Samsung is
authorized to provide to End-Users pursuant to this Agreement.
1.10 "Second Level Support" means the resolution of suspected errors
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reported by End-Users that do not require access to the Product source code to
resolve and the resolution of End-User questions regarding the use and operation
of the Products, including, without limitation, (i) having qualified, trained
Samsung technical employees isolate errors and determine possible workarounds,
(ii) reviewing all reported errors to determine if such error is the result of
software or hardware other than the Products, (iii) if error continues to
persist, providing Xxxxxxx.xxx a written notification via e-mail of the error in
the Product along with the product version, severity, all steps taken to isolate
and or resolve the problem, and reasoning why Samsung believes it is a Third
Level Support problem; and (iv) assigning an engineer to work with Xxxxxxx.xxx
to recreate and resolve the problem as well as test the patch, if any.
1.11 "Third Level Support" means the resolution of errors in Product
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source code or Documentation in accordance with Xxxxxxx.xxx's maintenance and
support procedures that are generally applicable to Xxxxxxx.xxx's customers that
are under Product maintenance and support plans, including providing to Samsung
any new releases, bug fixes, patches, work-arounds or maintenance upgrades of
the applicable Product made generally available by Xxxxxxx.xxx to its customers
that are under maintenance and support plans.
1.12 "Territory" means the geographical area set forth on Exhibit A.
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1.13 "Order" is defined at Section 6.1.
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SECTION 2. LICENSE GRANT
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2.1 License Grant. In consideration for the payment of fees set forth in
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Section 6 of this Agreement, and subject to the limitations set forth in Section
2.2 hereof and to the other terms and conditions of this Agreement:
(a) License to make Copies. Xxxxxxx.xxx hereby grants to Samsung, during
the term of this Agreement, a royalty bearing, non-exclusive, non-transferable
license in the Territory to make Copies of the Product solely for the purpose of
use and distribution of such Copies in accordance with this Agreement.
(b) License to Distribute and Sublicense Copies. During the term of this
Agreement, a non-exclusive, non-transferable license to distribute and
sublicense Copies in the Territory, either as a stand-alone product or as part
of a bundled service offering, for limited terms of at least twelve (12) months
and no more than thirty-six (36) months ("Term Sublicenses") but only to End-
Users for which Samsung places an Order in accordance with this Agreement and
pays Xxxxxxx.xxx fees in accordance with Exhibit A. Notwithstanding the
foregoing, in the event Samsung seeks to distribute and sublicense additional
Copies to a single End-User, the term of the original Term Sublicense for such
End-User must be extended such that all Copies sublicensed by a single
department or division of a certain End-User are co-terminus. On a case-by-case
basis and only upon consent from Xxxxxxx.xxx, Samsung may sublicense additional
Copies which are not co-terminus. On a case-by-case basis and only upon consent
from Xxxxxxx.xxx, Samsung may license
Xxxxxxx.xxx, Inc PAGE 2
Proprietary and Confidential - For Intended Recipient Only
the Products with a perpetual term; in such case, except as otherwise stated,
all references to "Term Sublicenses" mentioned herein shall apply to such
perpetual use licenses.
(c) License to use Copies in Providing Service. A non-exclusive, non-
transferable license to use the Copies in the Territory to provide a bundled
service offering to End-Users with Term Sublicenses granted in accordance with
Section 2.1(b) for the duration of each such Term Sublicense, but only for End-
Users for which Samsung places an Order in accordance with this Agreement and
pays Xxxxxxx.xxx fees in accordance with Exhibit A. Notwithstanding the
foregoing, in the event Samsung seeks to distribute and sublicense additional
Copies to provide the bundled service to a single department or division of a
certain End-User, the term of the original Term Sublicense for such End-User
must be extended such that all Copies sublicensed by a single End-User are co-
terminus. On a case-by-case basis and only upon consent from Xxxxxxx.xxx,
Samsung may sublicense additional Copies which are not co-terminus. In the event
Samsung seeks to customize the Healing Agent, it may only customize the user
interface of the Healing Agent and must comply with the user interface
requirements set forth in Xxxxxxx.xxx's standard User Interface Guidelines,
which are incorporated herein by this reference; at least ten (10) days prior to
the distribution of each different customized Healing Agent, Samsung shall
provide Xxxxxxx.xxx with one (1) fully enabled copy of such customized Healing
Agent, at no charge, for use by Xxxxxxx.xxx solely for license, trademark, and
user interface guidelines compliance verification purposes.
(d) License to use Copies Internally. During the term of this Agreement, a
non-exclusive, non-transferable license to use the number of Copies internally
to support Samsung employees provided that Samsung places an Order in accordance
with this Agreement and pays Xxxxxxx.xxx fees as set forth in Exhibit A. Usage
by Samsung shall be subject to the terms and conditions for the applicable
Product, as set forth in the Reseller License Guide. Unless otherwise agreed
upon by Xxxxxxx.xxx in writing, the term of such internal use licenses shall be
thirty-six (36) months. Notwithstanding the foregoing, in the event Samsung
seeks to license additional Copies for internal usage by a single department or
division, the term of the original licenses must be extended such that all
Copies licensed for internal usage are co-terminus. On a case-by-case basis and
only upon consent from Xxxxxxx.xxx, Samsung may sublicense additional Copies
which are not co-terminus.
(e) License for Marketing Materials. Xxxxxxx.xxx hereby grants to
Samsung, during the term of this Agreement, a non-exclusive, non-transferable
license in the Territory to make exact copies of the Marketing Materials and to
use such copies in the Territory for the sole purpose of marketing, advertising
and promoting the Products or Samsung's service offering bundled with the
Products.
2.2 Limitations.
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(a) Deployment. Samsung shall be responsible for deployment and
implementation of the Product. Any assistance provided by Xxxxxxx.xxx with such
deployment and implementation shall be considered Consulting Services and
subject to a fee as set forth in Section 5.2 of this Agreement.
(b) Bundling Limitations. Under no circumstances may the Product or
Copies be bundled with competing products. For purposes of this Agreement,
"competing products" means self-healing, self-servicing, and assisted service
software packages designed to solve break/fix and
Xxxxxxx.xxx, Inc PAGE 3
Proprietary and Confidential - For Intended Recipient Only
"how-to" computer problems, including but not limited to Motive Communication's
software solution. This bundling limitation shall not prevent Samsung from
selling, distributing, or developing competing products to be sold separately
from the Products, provided Samsung does not breach this Agreement, including
but not limited to Section 11. Notwithstanding the foregoing, in order to
maintain its standing as the exclusive reseller in the Republic of Korea (as set
forth in Section III. of Exhibit A), Samsung shall not sell, distribute, or
develop competing products for sale in the Republic of Korea for the period
beginning on the Effective Date and ending December 31, 2001.
(c) Copying Limitations. Samsung may only make Copies of the Product at
its own facilities and may not permit any other third party to make Copies of
the Products without Xxxxxxx.xxx's prior written approval. Samsung shall
reproduce on all Copies of the Products, the unaltered copyright and proprietary
information notices that are affixed to the original copy of the Product
delivered to Samsung by Xxxxxxx.xxx, or any subsequent version or update thereof
provided by Xxxxxxx.xxx to Samsung. Samsung shall make only the minimum number
of Copies of the Product as is necessary for Samsung to exercise the license
grants in Section 2.1.
(d) No Delegation. Except as expressly provided herein, Samsung may not
use subdistributors, agents, resellers or otherwise sublicense its rights or
delegate any of its obligations hereunder in any manner.
(e) End-User Limitations. Each sublicense of the Products must be
pursuant to an agreement in writing or via a binding shrinkwrap or clickwrap
license, under which the End-User agrees to be bound by a license agreement
containing terms and conditions at least as restrictive as those set forth for
the applicable Product in the Reseller License Guide attached as Exhibit B
hereto. Samsung shall not make Copies, distribute or sublicense any releases,
bug fixes, patches, work-arounds or maintenance upgrades of the Product that are
provided to Samsung by Xxxxxxx.xxx as Third Level Support to End-Users for whom
Samsung has not paid to Xxxxxxx.xxx the required maintenance and support fees.
End-User license agreements shall not be transferable or sublicensable.
(f) Retention of Ownership. Except as expressly licensed to Samsung
herein, Xxxxxxx.xxx and its licensors retain all right and title to (i) all
Intellectual Property Rights related to the Product, Copies, Marketing Materials
or copies thereof (by whomever produced) and (ii) all Intellectual Property
Rights of Xxxxxxx.xxx. Samsung shall take any reasonable actions requested by
Xxxxxxx.xxx, including the execution, registration and recordation of
instruments, that may be necessary or appropriate to assign these rights to
Xxxxxxx.xxx or its licensor or perfect these rights in Xxxxxxx.xxx's or its
licensor's name. Samsung will have no right to receive or license any source
code with respect to any Product. Xxxxxxx.xxx and its licensors reserve all
rights and licenses to the Product not expressly granted to Samsung hereunder.
Samsung shall acquire no right, title or interest in any Intellectual Property
related to the Product or any Copies thereof (by whomever produced) other than
the license rights as described by Section 2.1 of this Agreement. All usage of
such Intellectual Property shall inure to Xxxxxxx.xxx's benefit. Samsung shall
not at any time do any act which would impair such Intellectual Property Rights.
Samsung agrees to take no action inconsistent with Xxxxxxx.xxx's ownership of an
interest in such Intellectual Property, or assist any third party in doing the
same.
Xxxxxxx.xxx, Inc PAGE 4
Proprietary and Confidential - For Intended Recipient Only
SECTION 3. TERM AND TERMINATION
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3.1 Term. This Agreement shall become effective as of the Effective Date
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and, unless terminated earlier as provided herein, this Agreement shall remain
in effect for an initial term of four (4) years following the Effective Date.
After the initial term, this Agreement shall renew automatically for subsequent
one (1) year terms, unless either party provides written notice to the other of
nonrenewal at least ninety (90) days prior to anniversary of the Effective Date.
3.2 Termination.
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(a) Either party shall have the right to terminate this Agreement if the
other party materially breaches any material provision of this Agreement and
fails to cure such breach within thirty (30) days (other than Samsung's
obligation to pay fees hereunder when due) after receipt of written notice
describing the breach; provided however that the cure period with respect to
breaches of any payment obligations shall be ten (10) days after receipt of
written notice.
(b) Either party shall have the right to terminate this Agreement
immediately upon written notice to the other party if the other party ceases to
do business, dissolves, liquidates or otherwise terminates its business
operations.
(c) Either party shall have the right to terminate immediately upon
written notice to the other party if the other party shall attempt to seek
protection under any bankruptcy, receivership, trust deed, creditors
arrangement, or comparable proceeding or if any such proceeding is instituted
against the other party or such other party makes a general assignment for the
benefit of creditors.
(d) This Agreement may be terminated upon the mutual agreement of the
parties therein.
3.3 Termination Duties. Upon termination or expiration of this Agreement
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(i) all rights and licenses of Samsung hereunder shall terminate, (ii) Samsung
shall immediately deliver the report required by Section 7.1 hereof; and (iii)
Samsung shall immediately return to Xxxxxxx.xxx all Confidential Information,
the Golden Master and all Copies of the Product and any other related materials
in its possession, custody or control (including all copies or embodiments
thereof) accompanied by an affidavit of an officer of Samsung certifying that
Samsung has complied with all of its obligations contemplated by this Section
3.3. The following sections shall survive, in accordance with their terms, any
expiration or termination of this Agreement: 1, 2.2, 3, 5, 6, 7, 9, 10, 11, 12,
13, 14.
3.4 Post-Termination Matters.
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(a) Survival of End-User Licenses; Payment Immediately Due. If this
Agreement expires or is terminated for any reason, each Term Sublicense properly
granted to End-Users prior to such expiration or termination (the "Continuing
Term Sublicenses") shall remain in effect until the end of the then current term
of such Term Sublicense, and may not be renewed or extended. Immediately upon
any termination or expiration of this Agreement, Samsung will pay to Xxxxxxx.xxx
all fees attributable to Term Sublicenses, whether or not currently due, and all
Third Level Support Fees accrued as of the expiration or termination date.
(b) Limited Survival of this Agreement. Upon expiration of this Agreement
or upon termination of this Agreement by Samsung pursuant to Sections 3.2, the
provisions of this
Xxxxxxx.xxx, Inc PAGE 5
Proprietary and Confidential - For Intended Recipient Only
Agreement (including, without limitation, Sections 5, 6 and 8 hereof) shall
survive with respect to any Continuing Term Sublicenses, and internal usage
licenses, properly granted under this Agreement for the sole and exclusive
purposes of allowing Samsung to fulfill any orders accepted and provide
outsourcing services and any maintenance and support obligations pursuant to
agreements with End-Users entered into prior to such expiration or termination
by Samsung; Xxxxxxx.xxx shall continue to provide Third Level Support service
provided the applicable fees have been paid. Such survival shall continue until
the earlier of (a) such time as such obligations to End-Users shall terminate or
expire or (b) three years following such termination of this Agreement, subject
to earlier termination due to Samsung's breach of the surviving obligations.
(c) Immediate Termination Rights. Upon the earlier of expiration of the
three year period provided in Section 3.4(b) or termination of this Agreement by
Xxxxxxx.xxx pursuant to Sections 3.2, (i) all licenses granted to Samsung under
this Agreement shall terminate, and (ii) Samsung shall (a) provide Xxxxxxx.xxx
with (y) the names and contact information for the End-Users granted Term
Sublicenses under this Agreement and (z) the remaining term of any Continuing
Term SubLicenses and the remaining term of the maintenance and support
obligations ("Remaining Licenses"), and (b) Samsung shall pay to Xxxxxxx.xxx the
outstanding balance, whether or not currently due, of any License Fees owed to
Xxxxxxx.xxx for such Remaining Licenses and pay to Xxxxxxx.xxx the remaining
amount, whether or not currently due, of any and all maintenance and support
fees with respect to obligations owed to End-Users.
(d) No Renewal, Extensions or New Sublicenses. Notwithstanding anything
to the contrary herein, following the termination or expiration of this
Agreement, Samsung shall not be permitted to renew or extend the term of any
End-User Term Sublicense, internal use license, or maintenance and support
obligations with respect to the Products and Samsung may not enter into any new
sublicense agreements or maintenance and support arrangements with respect to
the Products.
3.5 Additional Remedies. Except as expressly limited by this Agreement,
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termination of this Agreement shall be without prejudice to any other remedy
which may be available to a party due to default of this Agreement. The parties
agree that violation of obligations under this Agreement may cause irreparable
harm and significant injury to an extent that may be extremely difficult to
ascertain. Accordingly, the parties agree that each party will have, in addition
to any other rights or remedies available to it at law or in equity, the right
to seek injunctive relief to enjoin any breach or violation of this Agreement.
3.6 Disclaimer. Except as specifically provided herein, if either party is
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entitled under local law or otherwise for any special payment or termination
indemnity as a consequence of termination or expiration of this Agreement, such
party hereby waives and disclaims, to the fullest extent permitted by law, any
right to such payment or indemnity.
3.7 Limitation on Liability. Except as expressly set forth in this Section
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3, neither party shall incur any liability whatsoever for any damage, loss or
expenses of any kind suffered or incurred by the other (or for any compensation
to the other) arising from or incident to any termination of this Agreement
pursuant to its. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR COMPENSATION,
REIMBURSEMENT OR DAMAGES ON ACCOUNT OF THE LOSS OF PROSPECTIVE PROFITS OR
ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, LEASES OR
COMMITMENTS IN CONNECTION WITH
Xxxxxxx.xxx, Inc PAGE 6
Proprietary and Confidential - For Intended Recipient Only
THE BUSINESS OR GOODWILL OF XXXXXXX.XXX OR SAMSUNG BECAUSE OF TERMINATION OF
THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS.
SECTION 4. DEVELOPMENT AND DELIVERY
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4.1 Delivery of Documentation and Materials. From time to time,
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Xxxxxxx.xxx shall deliver to Samsung the Documentation in electronic file format
and the Marketing Materials. Samsung may only distribute the Products
accompanied by the Documentation.
4.2 Delivery of the Products. Xxxxxxx.xxx may, at its discretion, deliver
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to Samsung a golden master electronic copy of the Products, in object code
format only (the"Golden Master"), or ship Products when in receipt of an Order.
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At Xxxxxxx.xxx's request, Copies of the Product produced from a Golden Master or
other CD shall be individually enabled by an electronic or written password (an
"Enabling Key") which Xxxxxxx.xxx shall provide to Samsung upon Samsung's
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request in "blocks" or "bundles," the size of which shall be at Xxxxxxx.xxx's
sole discretion.
4.3 Replacement Version. If at any time during this Agreement Xxxxxxx.xxx
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notifies Samsung of the development of a replacement version or update of the
Products or any part thereof, Samsung shall use reasonable commercial efforts to
cease use and distribution of the prior version of the Products, or the affected
part thereof, within ten (10) days after Xxxxxxx.xxx makes the replacement
version or update of the Products available to Samsung.
4.4 Testing. Xxxxxxx.xxx will test the version of the Products as of the
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Effective Date, on the Korean version of the Wintel operating system, at
Xxxxxxx.xxx's facilities. Xxxxxxx.xxx will be responsible for all certification
testing of the Korean version of the Product. In order to effect such
certification testing, Samsung will provide engineers to perform such testing at
Xxxxxxx.xxx's facilities. Samsung will have the rights to resell the generally
available Product (for the Korean version of the Wintel operating system) in
accordance with the terms of this Agreement.
4.5 Localization. Xxxxxxx.xxx will be responsible for localization (i.e.
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language translation) of the Products with respect to the Korean version of the
Product for resale into the Asia/Pacific market. Xxxxxxx.xxx shall use
commercially reasonable efforts to make such version generally available for
resale by July 15, 2000.
SECTION 5. SAMSUNG TRAINING AND CUSTOMER SUPPORT
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5.1 Training. Samsung shall use commercially reasonable efforts to
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provide First Level Support and Second Level Support with similar response times
as set forth in Exhibit C. Samsung shall use commercially reasonable efforts to
maintain on its staff a reasonable number of engineers who are assigned to
provide, and sufficiently knowledgeable about the Products' usage and deployment
as to be capable of providing the First Level Support and Second Level Support.
Samsung shall use commercially reasonable efforts to maintain appropriately
knowledgeable back up personnel for such engineers. Xxxxxxx.xxx will provide
standard training at mutually agreed upon locations (as set forth the applicable
Order) at then-current prices.
5.2 Consulting Services. Subject to the payment of the applicable fee,
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Xxxxxxx.xxx will provide thirty (30) days of consulting services to Samsung
relating to Product architecture and
Xxxxxxx.xxx, Inc PAGE 7
Proprietary and Confidential - For Intended Recipient Only
implementation, subject to fees at Xxxxxxx.xxx's then current standard rates,
plus all reasonable expenses incurred by Xxxxxxx.xxx in providing such services.
5.3 Technical Support.
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(a) First and Second Level Support. Samsung shall provide to Samsung
Customers and End-Users all First and Second Level Support with respect to the
Products, and shall distribute bug fixes, patches, work-arounds, and other
benefits of the Third Level Support (deemed by Xxxxxxx.xxx to be re-
distributable) which it receives from Xxxxxxx.xxx, as well as maintenance
upgrades, only to End-Users who have sublicensed Products and for whom Samsung
is current on the Support and Maintenance Fees as set forth Exhibit A.
(b) Third Level Support. With respect to the Products, subject to the
payment of the Third Level Support fees, Xxxxxxx.xxx will provide Third Level
Support directly to Samsung only. Xxxxxxx.xxx shall have no obligation to
provide Third Level Support directly to any End-User.
(c) Samsung will provide First and Second Level Support in a timely and
professional manner. Samsung shall only provide the benefits of Xxxxxxx.xxx's
Third Level Support to End-Users who are entitled to such benefits pursuant to
this Agreement.
5.4 Support Contacts. Samsung will identify for Xxxxxxx.xxx two (2)
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points of contact for managing all support communications, and an escalation
point of contact for escalating any issues related to support or maintenance.
Xxxxxxx.xxx shall identify for Samsung a primary point of contact for managing
all support communications, and an escalation point of contact for escalating
any issues related to support or maintenance services.
SECTION 6. ORDERS AND FEES
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6.1 "Order" means a written form submitted to Xxxxxxx.xxx by Samsung
setting forth the Products to be licensed to Samsung or to an End-User. If any
term of this Agreement conflicts with any term of an issued Order, this
Agreement shall take precedence.
6.2 Samsung will order Products by issuing an Order via U.S mail or
facsimile followed by original in U.S. mail. Samsung acknowledges that Orders
issued to Xxxxxxx.xxx for Products shall conform to the terms and conditions of
this Agreement. Each Order shall specify the following items for each End-User:
this Agreement number, type of Product, quantity for each type of product,
initial order or repeat order for existing End-User (or Samsung, if using for
internal purposes), duration of term, total number and type of existing
Licenses, total prepayment fees as well as catch up fees due and contact
information of End-User. Xxxxxxx.xxx shall deliver the most current version of
the Products to Samsung. Xxxxxxx.xxx agrees to accept Orders if they comply with
the provisions of this Agreement; otherwise acceptance of the Orders are at
Xxxxxxx.xxx's sole discretion. No additional or different provisions proposed by
Samsung (in an Order, purchase order, or otherwise) shall apply unless signed by
both parties.
6.3 License Fees. Samsung shall pay Xxxxxxx.xxx a monthly license fee in
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accordance with Exhibit A per each Product licensed. Fees for the Products shall
be due in accordance with Exhibit A or a fully executed Order. On a case-by-case
basis and only upon consent from
Xxxxxxx.xxx, Inc PAGE 8
Proprietary and Confidential - For Intended Recipient Only
Xxxxxxx.xxx, Samsung may license the Products with a perpetual term; the fees
for such perpetual usage shall be determined by Xxxxxxx.xxx.
6.4 Services Fees. Samsung shall pay Xxxxxxx.xxx the fees with respect to
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Training, and Consulting Services provided pursuant to Section 5, at
Xxxxxxx.xxx's then-current rates. Fees for Technical Support are set forth in
Exhibit A.
6.5 Expenses. Samsung shall reimburse Xxxxxxx.xxx for the expenses
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incurred by Xxxxxxx.xxx pursuant to Sections 5.1 and 5.2 unless otherwise agreed
upon in a fully executed Order.
6.6 Taxes. Samsung shall be responsible for all taxes (except as otherwise
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provided in this Section 6.6 ), duties and other governmental assessments
incurred by either party as a result of the consummation of the transactions
contemplated by this Agreement. Samsung acknowledges and agrees that it shall be
the obligation of Samsung to report income received by Samsung hereunder to all
appropriate taxing entities, and agrees to reimburse, indemnify and hold
Xxxxxxx.xxx free and harmless from any obligation imposed by law on Xxxxxxx.xxx
to withhold taxes or other taxes.
Xxxxxxx.xxx shall be responsible for the withholding and/or payment, as
required by law, of all federal, state and local taxes imposed on Xxxxxxx.xxx or
its employees because of the licenses or any services hereunder. Further,
Xxxxxxx.xxx shall comply with all federal and state benefits laws applicable to
Xxxxxxx.xxx or its employees, if any, including making deductions and
contributions for social security and unemployment tax for social security and
unemployment tax. In the event that Xxxxxxx.xxx is subject to withholding tax
levied by the government of Republic of Korea which Samsung is required to
withhold with respect to the payment hereof, Samsung shall deduct such tax from
the price or payment to be paid at a rate provided in the relevant article of
the Tax Treaty between U.S.A. (or any country of any permitted assignee) and the
Republic of Korea. In which case, Samsung shall furnish to Xxxxxxx.xxx, as soon
as practicable, the official tax receipts which is applicable to such
withholding and which designates Xxxxxxx.xxx as a taxpayer, so that Xxxxxxx.xxx
can receive a credit for the amount withheld.
6.7 Samsung's Prices. Samsung shall be solely responsible for setting the
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pricing to End-Users and obtaining payment from End-Users. Delays or failures in
obtaining such payments will not affect Samsung's obligation to make payments to
Xxxxxxx.xxx pursuant to this Agreement.
SECTION 7. EXPENSES
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7.1 Each party will be responsible for their own travel and other expenses
required to negotiate and execute this Agreement.
7.2 Other than as specifically provided herein, (a) Samsung and
Xxxxxxx.xxx will not charge each other for personnel time expended in the
performance of the Agreement, nor for consulting activities intended to improve
the use or salability of the product, and (b) each of Samsung and Xxxxxxx.xxx
will be responsible for its own expenses in connection with the exercise of its
rights or performance of its obligations under this Agreement.
Xxxxxxx.xxx, Inc PAGE 9
Proprietary and Confidential - For Intended Recipient Only
SECTION 8. REPORTS AND PAYMENTS
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8.1 Currency. All payments due under this Agreement shall be made in
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United States Dollars. All amounts set forth in Exhibit A are in United States
Dollars. Xxxxxxx.xxx shall send invoices for each Order submitted by Samsung and
Samsung shall pay such invoices within thirty (30) days of the receipt of such
invoices.
End-User Agreements. During the term of this Agreement, Samsung shall
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promptly provide to Xxxxxxx.xxx copies of each form of End-User License
Agreement executed by End-Users.
8.3 Late Payments. Late payments shall be subject to late payment interest
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charges at a rate of one and one-half percent (1.5%) per month or the maximum
allowed by law, whichever is lower. Payments not received by Xxxxxxx.xxx on or
before the due date which were also not recorded as due on the quarterly report
shall be subject to an additional five percent (5%) late payment penalty fee or
the maximum allowed by law, whichever is lower.
8.4 General Reports. During the term of this Agreement and for three (3)
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years after its termination, Samsung agrees (i) to retain all usual and proper
records and books of account and all usual and proper entries relating to the
Products and Copies sufficient to substantiate Samsung's compliance with this
Agreement, including, without limitation, reporting and payment of the
applicable fees and (ii) to allow Xxxxxxx.xxx and/or its representative to
review, audit and/or inspect Samsung's documents, financial statements, business
records, computer processors, equipment and facilities in order to verify
Samsung's compliance with the terms of this Agreement, including, without
limitation, reporting and payment of the applicable fees. All such information
shall be deemed Confidential Information and subject to Section 11. Any review,
audit and/or inspection shall be conducted during regular business hours at
Samsung's facilities on reasonable prior notice. If Xxxxxxx.xxx's or its
representative's review, audit or inspection reveals any underpayments, then
Samsung shall within thirty (30) days after notice thereof to pay Xxxxxxx.xxx
the full amount of the underpayment and any accrued late fees pursuant to
Section 8.3, running from the date payments should have been made had the
reports been accurate. If Samsung underpayment for any quarterly period exceeds
the lesser of (i) $10,000 or (ii) five percent (5%) of total amount due to
Xxxxxxx.xxx for such period, then Samsung shall reimburse Xxxxxxx.xxx for all
reasonable costs of the audit. The parties agree that any audit performed under
this Section 8.4 shall be final and binding upon the parties
C. RESALE:
In the event Samsung sells Products to third party businesses, Sauipment and
facilities in order to verify Samsung's compliance with the terms of this
Agreement, including, without limitation, reporting and payment of the
applicable fees. All such information shall be deemed Confidential Information
and subject to Section 11. Any review, audit and/or inspection shall be
conducted during regular business hours at Samsung's facilities on reasonable
prior notice. If Xxxxxxx.xxx's or its representative's review, audit or
inspection reveals any underpayments, then Samsung shall within thirty (30) days
after notice thereof to pay Xxxxxxx.xxx the full amount of the underpayment and
any accrued late fees pursuant to Section 8.3, running from the date payments
should have been made had the reports been accurate. If Samsung underpayment for
any quarterly period exceeds the lesser of (i) $10,000 or (ii) five percent (5%)
of total amount due to Xxxxxxx.xxx for such period, then Samsung shall reimburse
Xxxxxxx.xxx for all reasonable costs of the audit. The parties agree that any
audit performed under this Section 8.4 shall be final and binding upon the
parties.
SECTION 9. MARKETING.
---------
Xxxxxxx.xxx and Samsung each agree to the terms and provisions with respect
to marketing which are set forth in Exhibit D attached hereto, and such terms
and provisions are hereby incorporated by reference into this Agreement.
SECTION 10. SAMSUNG COVENANTS AND REPRESENTATIONS
-------------------------------------
10.1 Samsung shall not (and shall not allow any third party) to (i)
decompile, disassemble, or otherwise reverse engineer (except to the extent that
applicable law prohibits reverse engineering restrictions) or attempt to
reconstruct or discover any source code, underlying ideas, algorithms, file
formats or programming or interoperability interfaces of the Products by any
means whatsoever, (ii)
Xxxxxxx.xxx, Inc PAGE 10
Proprietary and Confidential - For Intended Recipient Only
remove any product identification, copyright or other notices, (iii) modify, or,
except to the extent expressly authorized herein, incorporate into or with other
software or create a derivative work of any part of the Products, (iv) except as
expressly permitted by this Agreement disseminate information or analysis
(including, without limitation, benchmarks) regarding the quality or performance
of the Products from any source other than Xxxxxxx.xxx, without prior written
authorization by Xxxxxxx.xxx, (v) except as expressly permitted by this
Agreement, use the output or other information generated by the Products
(including, without limitation, output describing the structure of a software
program) for any purpose other than permitted use and distribution of the
Products, and (iv) except as expressly permitted by this Agreement, publish or
use (or cooperate in the publication or use of) any trademarks of Xxxxxxx.xxx
without Xxxxxxx.xxx's prior written consent.
10.2 Samsung shall comply with all laws and regulations applicable to
this Agreement or the transactions contemplated hereby.
10.3 Except to the extent prohibited by agreements between Samsung and
End-Users, Samsung shall provide Xxxxxxx.xxx with periodic information as to the
nature and frequency of desktop and/or network malfunctions encountered by the
End-Users and how such malfunctions were detected and/or repaired (whether or
not using the Products) and as to any other problems encountered with the
Products and any resolutions arrived at for those problems, and to communicate
promptly to Xxxxxxx.xxx any and all modifications, design changes or
improvements of the Products suggested by any End-User, employee or agent.
Samsung further agrees (i) that Xxxxxxx.xxx shall have any and all right, title
and interest in and to any such suggested modifications, design changes or
improvements of the Products, without the payment of any additional
consideration therefore either to Samsung, or its employees or agents and (ii)
that it will fully cooperate with Xxxxxxx.xxx in this regard.
10.4 Samsung agrees that if the relationship between the End-User and
Samsung terminates, for any reason, Samsung shall remain liable to Xxxxxxx.xxx
for the applicable monthly fees for the original duration of the agreement
between such End-User and Samsung. Samsung shall immediately notify Xxxxxxx.xxx
of such termination and Xxxxxxx.xxx may offer the Product to such End-User, in
its sole discretion. In the event Xxxxxxx.xxx collects fees for usage of the
Product, Xxxxxxx.xxx may, at its discretion, relieve Samsung of its obligation
to pay the applicable monthly fees for such former End-Users to the extent
Xxxxxxx.xxx is collecting fees twice for the same usage.
10.5 Enforcement. Samsung hereby agrees to enforce against all End-Users
-----------
the material provisions of the applicable End-User License Agreement. If Samsung
learns that any End-User has breached any such provision, Samsung will
immediately notify Xxxxxxx.xxx and take, at Samsung's expense, all steps that
may be available to enforce such agreement, including availing itself of actions
for seizure or injunctive relief. If Samsung fails to take these steps in a
timely and adequate manner, Samsung will provide such assistance to Xxxxxxx.xxx
as it reasonably requests in enforcing such agreement and will reimburse
Xxxxxxx.xxx for any costs that it incurs in enforcing such End-User License
Agreement.
10.6 Export Restrictions. Samsung shall not (and shall not allow others
-------------------
to) remove or export from the United States (or re-export from anywhere) any
part of the Product or any direct product hereof except in compliance with and
with all licenses and approvals required under
PAGE 11
Xxxxxxx.xxx, Inc
Proprietary and Confidential - For Intended Recipient Only
applicable export laws and regulations, including without limitation, those of
the U.S. Department of Commerce.
10.7 Privacy. The Product contains features which may allow Samsung to
-------
collect data from, collect data from, control and or/monitor computers running
the Product. Samsung is solely responsible for, and assumes all liability with
respect to all such activity. Samsung shall indemnify and hold Xxxxxxx.xxx
harmless from and against any damages, claims, losses, settlements, attorneys'
fees and other expenses related to any such activities.
10.8 High Risk Activity. Samsung acknowledges that the Products are not
------------------
intended for use in connection with any high risk or strict liability activity
(including, without limitation, air or space travel power plant operation, life
support or emergency medical operations) and that Xxxxxxx.xxx makes no warranty
and shall have no liability in connection with any use of the Products in such
situations.
SECTION 11. CONFIDENTIALITY
---------------
11.1 Each party agrees that it will hold in strict confidence and not
disclose the Confidential Information of the other party to any third party and
to use the Confidential Information of the other party for no purpose other than
the purposes expressly permitted by this Agreement. Each party shall only
permit access to the other party's Confidential Information to those of its
employees having a need to know and who have signed confidentiality agreements
containing terms at least as restrictive as those contained in this Section 11.
Each party shall maintain the confidentiality and prevent accidental or other
loss or disclosure of any Confidential Information of the other party with at
least the same degree of care as it uses to protect its own Confidential
Information but in no event with less than reasonable care.
11.2 A party's obligations of confidentiality under this Agreement
shall not apply to information which such party can document (i) is in the
public domain without the breach of any agreement or fiduciary duty or the
violation of any law, (ii) was known to the party prior to the time of
disclosure without the breach of any agreement or fiduciary duty or the
violation of any law, (iii) is independently developed by the party prior to
receiving such Confidential Information without reference to any Confidential
Information, (iv) is required to be disclosed pursuant to a judicial order, a
requirement of a governmental agency or by operation of law, provided that such
party gives the other party written notice of any such requirement immediately
after learning of any such requirement, and takes all reasonable measures to
avoid or limit disclosure under such requirements and to obtain confidential
treatment or a protective order and has allowed such other party to participate
in the proceeding. Upon written request by either party hereto, the other party
shall promptly return all documents and other tangible materials representing
the requesting party's Confidential Information and all copies thereof.
SECTION 12. LIMITED LIABILITY
------------------
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NEITHER
XXXXXXX.XXX NOR ITS SUPPLIERS SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY
SUBJECT MATTER OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY
OR ANY OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE
AGGREGATE OF THE FEES PAID
PAGE 12
Xxxxxxx.xxx, Inc
Proprietary and Confidential - For Intended Recipient Only
TO XXXXXXX.XXX BY SAMSUNG WITH RESPECT TO THE COPIES OF THE PRODUCTS THAT ARE
THE SUBJECT OF THE CLAIM DURING THE TWELVE MONTH PERIOD PRIOR TO THE CAUSE OF
ACTION, (II) FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY,
SERVICES OR RIGHTS); (III) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF
DATA; OR (IV) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. SOME STATES DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE
ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO SAMSUNG.
SECTION 13. INDEMNIFICATION
---------------
13.1 By Xxxxxxx.xxx. Xxxxxxx.xxx shall indemnify and hold harmless
--------------
Samsung against all damages, costs, expenses, liabilities and losses (including
reasonable attorneys' fees and expenses) (collectively, "Damages") arising out
of any claim of infringement of a valid, registered United States copyright or
United States trademark or misappropriation of a United States trade secret is
asserted against Samsung by a third party based upon Samsung's sublicensing,
distribution or marketing of the Products in full compliance with this Agreement
or Samsung's use, in full compliance with this Agreement, of Xxxxxxx.xxx's
trademarks in the sales, distribution or marketing of the Products; provided,
that, in each case, Xxxxxxx.xxx shall have (x) received from Samsung written
notice of said claim within ten (10) days of the assertion thereof; (y) have
received from Samsung the exclusive right to control and direct the
investigation, defense, or settlement of such claims; and (z) received the
complete cooperation and assistance of Samsung. In the event Xxxxxxx.xxx
reasonably believes that any Product infringes a third party Intellectual
Property Rights, Xxxxxxx.xxx may either: (1) substitute for such Product
substantially similar programs and documentation, (2) procure for Samsung the
right to continue using such Product or (3) terminate this Agreement upon thirty
(30) days advance written notice and refund the license fees paid for the
Product that is the subject of the claim less depreciation as calculated on an
eight-year straight-line basis commencing as of the Effective Date. This
Section 13.1 sets forth Samsung's sole and exclusive remedy with respect to any
claim of Intellectual Property Rights infringement. The foregoing obligations
of Xxxxxxx.xxx do not apply (A) with respect to Product which is modified after
shipment by any party other than Xxxxxxx.xxx, if the alleged infringement
relates to such modification, (B) with respect to Product that was combined with
any xxx-Xxxxxxx.xxx products, processes or materials where the alleged
infringement relates to such combination, (C) where the allegedly infringing
activity continues after Xxxxxxx.xxx has notified Samsung thereof or after
Xxxxxxx.xxx has informed Samsung of modifications that would have avoided the
alleged infringement, (D) where Samsung's use of the Product is incident to an
infringement not resulting primarily from the Product, or (E) with respect to
infringement based on use of a version other than the then current version of
the Product if such infringement could have been avoided by use of the then
current version.
13.2 By Samsung. Samsung shall indemnify and hold harmless Xxxxxxx.xxx
----------
against Damages arising out of (i) any claim arising from Samsung's actions or
omissions in its marketing, advertising, sales, distribution or sublicense of
the Products, (ii) any claim of infringement of a valid, registered trademark is
asserted against Xxxxxxx.xxx by a third party based upon Xxxxxxx.xxx's use, in
full compliance with this Agreement, of Samsung's trademarks in connection
PAGE 13
Xxxxxxx.xxx, Inc
Proprietary and Confidential - For Intended Recipient Only
with the marketing or advertising of the Products, and (iii) any breach of any
covenant required to be performed by Samsung hereunder; provided, that, in each
case Samsung shall have (x) received from Xxxxxxx.xxx notice of said claim
within ten (10) days of the assertion thereof; (y) have received from
Xxxxxxx.xxx the exclusive right to control and direct the investigation,
defense, or settlement of such claims; and (z) received complete cooperation and
assistance of Xxxxxxx.xxx.
SECTION 14. WARRANTY DISCLAIMER
-------------------
14.1 Limited Warranty. Xxxxxxx.xxx warrants and represents to Samsung
----------------
that for a period of ninety (90) days from the initial delivery of the Products
by Xxxxxxx.xxx, such Products, if operated as directed, will substantially
achieve the functionality described in the Documentation. Xxxxxxx.xxx warrants
that the media provided by Xxxxxxx.xxx to Samsung containing the Products will
be free from defects in material and workmanship and will so remain for ninety
(90) days from the delivery of the Products by Xxxxxxx.xxx.
14.2 Xxxxxxx.xxx's sole liability (and Samsung's exclusive remedy) for
any breach of the warranties under this Section 14 shall be, in Xxxxxxx.xxx's
sole discretion, to use commercially reasonable efforts: (i) to replace
Samsung's defective Products; or (ii) to advise Samsung how to achieve
substantially the same functionality with the Products as described in the
Documentation through a procedure different from that set forth in the
Documentation; or (iii) if the above remedies are impracticable, to refund the
license fee paid for the Products and terminate this Agreement. Xxxxxxx.xxx
shall have no obligation with respect to a warranty claim unless notified of
such claim and provided evidence of the license purchase within the applicable
warranty period. Xxxxxxx.xxx will use reasonable commercial efforts to repair,
replace, advise or refund pursuant to the foregoing warranty within thirty (30)
days of being so notified.
14.3 If any modifications are made to any Product by any party other than
Xxxxxxx.xxx, if the media is subjected to accident, abuse, or improper use, or
if Samsung breaches any of the terms of this Agreement, then this warranty shall
immediately terminate. This warranty shall not apply if any Product is used on
or in conjunction with hardware or software other than the unmodified version of
hardware and software with which such Product was designed to be used as
described in the applicable Documentation.
14.4 THE PROVISIONS OF SECTION 14.1 ABOVE CONSTITUTE A LIMITED WARRANTY,
AND IT IS THE ONLY WARRANTY MADE BY XXXXXXX.XXX OR ITS SUPPLIERS OR SAMSUNGS TO
ANY PERSON. NO DEALER, AGENT OR EMPLOYEE OF XXXXXXX.XXX IS AUTHORIZED TO MAKE
ANY MODIFICATIONS, EXTENSIONS OR ADDITIONS TO THIS LIMITED WARRANTY. XXXXXXX.XXX
MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED
(EITHER IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO THE PRODUCTS OR OTHER
MATERIALS PROVIDED BY XXXXXXX.XXX. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
THIS AGREEMENT, XXXXXXX.XXX EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF NON-
INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. XXXXXXX.XXX
DOES NOT WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR THAT OPERATION OF THE
PRODUCTS WILL BE SECURE OR UNINTERRUPTED. SAMSUNG MAY HAVE OTHER STATUTORY
RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF
STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE ABOVE LIMITED
WARRANTY PERIOD. MOREOVER, IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY,
APPLY UNLESS THEY ARE REQUIRED TO APPLY.
PAGE 14
Xxxxxxx.xxx, Inc
Proprietary and Confidential - For Intended Recipient Only
SECTION 15. GENERAL PROVISIONS
------------------
15.1 Relationship of Parties. The parties hereto expressly understand
-----------------------
and agree that Samsung is an independent contractor in the performance of each
and every part of this Agreement, and is solely responsible for all of its
employees and agents and its labor costs and expenses arising in connection
therewith. Xxxxxxx.xxx is in no manner associated with or otherwise connected
with the actual performance of this Agreement on the part of Samsung, nor with
Samsung's employment of other persons or incurring of other expenses. Except as
expressly provided herein, Xxxxxxx.xxx shall have no right to exercise any
control whatsoever over the activities or operations of Samsung.
15.2 Assignment. Neither party may assign this Agreement, in whole or in
----------
part, without the other party's written consent, except that either party may
assign this Agreement in connection with a merger, acquisition, reorganization,
to a successor of all or substantially all of the business and assets of such
party, or to a wholly-owned subsidiary or Affiliate provided that the assigning
party promptly notify the non-assigning party of such assignment in writing and
provide written evidence that the assignee has assumed all of the obligations of
the assigning party under this Agreement. An "Affiliate" is a company that
controls or is controlled by or is under common control with Licensee. Subject
to the foregoing, the provisions of this Agreement shall apply to bind the
successors and permitted assigns of the parties. Any attempted assignment or
other transfer of this Agreement shall be null and void.
15.3 Amendment and Waiver. Except as otherwise expressly authorized
--------------------
herein, any provision of this Agreement may be amended and the observance of any
provision of this Agreement may be waived only with the written consent of the
parties.
15.4 Governing Law and Legal Actions. This Agreement shall be governed by
-------------------------------
and construed under the laws of the State of New York and the United States
without regard to conflicts of laws provisions thereof and without regard to the
United Nations Convention on Contracts for the International Sale of Goods. If
any conflict or dispute arises out of, or in connection with, this Agreement,
the first attempt at resolution shall be amicable negotiation and reconciliation
between the parties hereto. If no resolution can be reached amicably, all
disputes, controversies, claims, or differences, which may arise between the
parties, out of, in relation to, or in connection with this Agreement, including
without limitation, the breach thereof, but excluding any claim for breach of
Xxxxxxx.xxx's intellectual property, shall be referred to and finally settled by
arbitration. The arbitration shall take place in New York, in accordance with
its Rules of Conciliation and Arbitration of the International Chamber of
Commerce. The award rendered in arbitration shall be final and binding upon both
parties. The sole jurisdiction and venue for claims not arbitrated shall be the
New York state and U.S. federal courts located in New York. Both parties consent
to the jurisdiction of such courts and agree that process may be served in the
manner provided herein for giving of notices or otherwise as allowed by New York
state or U.S. federal law. In any action or proceeding to enforce rights under
this Agreement, the prevailing party shall be entitled to recover costs and
attorneys' fees.
15.5 Headings. Headings and captions are for convenience only and are
--------
not to be used in the interpretation of this Agreement.
15.6 Notices. Notices under this Agreement shall be sufficient only if
-------
personally delivered, delivered by a major commercial rapid delivery courier
service or mailed by certified or
PAGE 15
Xxxxxxx.xxx, Inc
Proprietary and Confidential - For Intended Recipient Only
registered mail, return receipt requested to a
party at its addresses first set forth herein or as amended by notice pursuant
to this subsection. If not received sooner, notice by mail shall be deemed
received 5 days after deposit in the U.S. mail.
15.7 Entire Agreement. This Agreement supersedes all proposals, oral
----------------
or written, all negotiations, conversations, or discussions between or among
parties relating to the subject matter of this Agreement and all past dealing or
industry custom. This Agreement includes and incorporates herein by this
reference the Exhibits attached hereto. Any different or additional terms of any
related purchase order, confirmation, invoice, or similar form shall have no
force or effect.
15.8 Severability. If any provision of this Agreement is held to be
------------
illegal or unenforceable, that provision shall be limited or eliminated to the
minimum extent necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable.
15.9 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument
15.10 Force Majeure. If either party is prevented from performing any
-- -------------
portion of this Agreement by causes beyond its control, including, without
limitation, labor disputes, civil commotion, war, governmental regulations or
controls, casualty, inability to obtain materials or services or acts of God,
then except for payment obligations, such defaulting party will be excused from
performance for the period of the delay and for a reasonable time therefore.
IN WITNESS WHEREOF, the Parties have executed this Samsung Agreement on the
Effective Date.
Samsung SDS Co.,
XXXXXXX.XXX,
By: /s/ Hyun Xxx Xxxx By: /s/ Xxxxx X. Xxxx
___________________________________ ___________________________________
Name: Hyun Xxx Xxxx Name: Xxxxx X. Xxxx
_________________________________ _________________________________
Title: Vice President Title: CEO & President
________________________________ ________________________________
PAGE 16
Xxxxxxx.xxx, Inc
Proprietary and Confidential - For Intended Recipient Only
EXHIBIT A
Product and Fees
The fees payable by Samsung to Xxxxxxx.xxx for the use or resale of the
Xxxxxxx.xxx Products depend upon the environment in which the Samsung or its
customer is using the products.
I. PRODUCT LIST
------------
-----------------------------------------------------
XXXXXXX.XXX SUPPORT CENTER
Healing Agent License
Healing Console License
Xxxxxxx.xxx Server License
Components include:
. Healing Console
. Administrative Console
. Healing Agent
. DNA Editor
. Vault Manager
. Data Mover
. Xxxxxxx.xxx Server
-----------------------------------------------------
SUPPORT PORTAL LICENSE
Components include:
. Web Application
. Nexus
----------------------------------------------------
FOUNDRY LICENSE
Components include:
. DNA Editor
. Web Author
. Content Action Integrator
-----------------------------------------------------
II. PRICING
-------
All pricing is set forth in United States dollars.
A. INTERNAL USAGE:
In the event Samsung uses the Products for internal usage, Samsung shall
pay Xxxxxxx.xxx in accordance with the following schedule:
SUPPORT CENTER PRICING:
------------------------------------------------------------------------------------------------------------------
Number of Healing Agent Licenses Ordered at One Time Fee Per Healing Agent License Per Month
------------------------------------------------------------------------------------------------------------------
Up to 50,000 Licenses $[***]
50,001-100,000 Licenses $[***]
100,001-150,000 Licenses $[***]
150,001-200,000 Licenses $[***]
200,001-250,000 Licenses $[***]
------------------------------------------------------------------------------------------------------------------
[***] CONDFIDENTIAL MATERIAL REDACTED AND FILED SEPERATELY WITH THE COMMISSION
Xxxxxxx.xxx, Inc Schedule A. PAGE 17
Proprietary and Confidential - For Intended Recipient Only
FOUNDRY PRICING:
-----------------------------------------------------------------------
Monthly Fee, per Foundry License $[***]
-----------------------------------------------------------------------
SUPPORT PORTAL PRICING:
------------------------------------------------------------------------
Number of Agent Licenses Monthly Fee, Per Portal
------------------------------------------------------------------------
5,000 $[***]
10,000 $[***]
50,000 $[***]
100,000 $[***]
------------------------------------------------------------------------
. The duration (term) of each License is 36 months.
. The duration of each License shall be extended to be co-terminus with
subsequent orders of additional Healing Agent Licenses for internal usage
by a single department or division; decreased monthly fees per license
shall apply, if at all, only in the event the licenses are extended to be
co-terminus with subsequent orders. On a case-by-case basis and only upon
consent from Xxxxxxx.xxx, Samsung may sublicense additional licenses which
are not co-terminus.
. Licenses for internal usage must be licensed in minimum increments of two
thousand (2,000)
. A Order in the form set forth on Section 6.2 must be issued before Licenses
can be deployed by Samsung for internal usage.
. Samsung must prepay twelve (12) months of fees for each License licensed
for internal use; such prepayment is due sixty (60) days from the date of
the Order. Samsung must also pay a "catch up prepay" for previously ordered
Licenses in an amount equal to the number of months each License is
extended to be co-terminus with the current order multiplied the monthly
rate for the cumulative number of licenses in accordance with the pricing
above. After the expiration of the twelve (12) prepaid months, Samsung must
prepay three (3) months in advance until the remaining twenty-four (24)
months of the term expires.
. Additional discounts for a single Order can be earned by Samsung's
prepayment of the applicable fees, as follows: in the event Samsung prepays
twenty-four (24) months, Samsung shall be entitled to an additional [***]%
discount, and in the event Samsung prepays thirty-six (36) months, Samsung
shall be entitled to an additional [***]% discount.
. License fees may not be prorated for any month, and License fees shall
start accruing on the 1st day of the calendar month in which the Order is
received.
. Notwithstanding anything to the contrary in the Agreement, upon the license
of Healing Agents, Samsung is deemed to have licensed unlimited quantities
of Xxxxxxx.xxx Server Licenses and Xxxxxxx.xxx Healing Console Licenses
provided such Licenses are used solely for internal usage to support
Samsung's employees.
. Third Level Support is included in this pricing.
B. OUTSOURCING SERVICES TO BUSINESSES:
In the event Samsung distributes Healing Agents to assist in the provision
of technical support services to third party businesses, Samsung shall pay
Xxxxxxx.xxx as follows:
[***] CONDFIDENTIAL MATERIAL REDACTED AND FILED SEPERATELY WITH THE COMMISSION
Xxxxxxx.xxx, Inc Schedule A. PAGE 18
Proprietary and Confidential - For Intended Recipient Only
SUPPORT CENTER PRICING:
Healing Agent Healing Console Xxxxxxx.xxx Server
Quantity Based Discount Licenses Licenses Licenses
-----------------------------------------------------------------------------------------------------------------------
Number of Discount Monthly Fee, per Monthly Fee, per Monthly Fee, per Server
Agent Off List Agent License Console License License
Licenses
------------------------------------------------------------------------------------------------------------------------
List Price $[***] $[***] $[***]
------------------------------------------------------------------------------------------------------------------------
0 [***]% $[***] $[***] $[***]
1,000 [***]% $[***] $[***] $[***]
5,000 [***]% $[***] $[***] $[***]
10,000 [***]% $[***] $[***] $[***]
20,000 [***]% $[***] $[***] $[***]
25,000 [***]% $[***] $[***] $[***]
50,000 [***]% $[***] $[***] $[***]
------------------------------------------------------------------------------------------------------------------------
FOUNDRY PRICING:
---------------------------------------------------------------------------
Monthly Fee, per Foundry License $[***]
---------------------------------------------------------------------------
SUPPORT PORTAL PRICING:
---------------------------------------------------------------------------
Number of Agent Licenses Monthly Fee, Per Portal
---------------------------------------------------------------------------
5,000 $[***]
10,000 $[***]
50,000 $[***]
100,000 $[***]
---------------------------------------------------------------------------
. This pricing is based upon the number of licenses licensed at one time for
a distinct third party business.
. The duration of each License shall be extended to be co-terminus with
subsequent orders of additional Licenses by the same department or division
of the same third party business; decreased monthly fees per license shall
apply, if at all, only in the event the licenses are extended to be co-
terminus with subsequent orders. On a case-by-case basis and only upon
consent from Xxxxxxx.xxx, Samsung may sublicense additional licenses which
are not co-terminus.
. Healing Agent Licenses must be licensed in minimum increments of two
thousand (2000)
. This pricing is based upon a term for each license of 36 months; in the
event Samsung resells licenses with shorter terms, the following surcharge
on the fees set forth above, for each License, shall apply: [***]%
surcharge for a twenty-four (24) month term and [***]% surcharge for twelve
(12) month term. In no event shall Samsung sell a license with a term of
less than twelve (12) months or more than thirty-six (36) months.
. An Order in the form set forth in Section 6.2 must be issued before
Licensee can distribute Healing Agent Licenses to third parties; Samsung
must prepay twelve (12) months of fees for each License; such prepayment is
due sixty (60) days from the date of the Purchase Order. Samsung must also
pay a "catch up prepay" for previously ordered Licenses in an amount equal
to the number of months each License is extended to be co-terminus with the
current order multiplied the monthly rate for the cumulative number of
licenses in accordance with the pricing above. Upon expiration of the
twelve prepaid months, Samsung must prepay three (3) months in advance
until the applicable term expires.
[***] CONDFIDENTIAL MATERIAL REDACTED AND FILED SEPERATELY WITH THE COMMISSION
Xxxxxxx.xxx, Inc. Schedule A. PAGE 19
Proprietary and Confidential - for Intended Recipient Only
. Additional discounts for a single Order for a distinct third party can be
earned by Samsung's prepayment of the applicable fees, as follows: in the
event Samsung prepays twenty-four (24) months, Samsung shall be entitled to
an additional [***]% discount, and in the event Samsung prepays thirty-
six (36) months, Samsung shall be entitled to an additional [***]%
discount.
. License fees may not be prorated for any month, and License fees shall
start accruing on the 1/st/ day of the calendar month in which the Order is
received.
. Samsung may not use Xxxxxxx.xxx Servers or Healing Consoles received free
for internal use purposes for the purpose of supporting third parties;
Samsung must instead license additional Xxxxxxx.xxx Server Licenses and
Healing Console Licenses.
. Third Level Support is included in this pricing.
C. RESALE:
In the event Samsung sells Products to third party businesses, Samsung
shall pay Xxxxxxx.xxx as follows:
SUPPORT CENTER PRICING:
---------------------------------------------------------------------------------------------------------------------
Quantity Based Discount Healing Agent Healing Console Xxxxxxx.xxx Server
Licenses Licenses Licenses
---------------------------------------------------------------------------------------------------------------------
Number of Agent Discount Monthly Fee, per Monthly Fee, per Monthly Fee, per Server
Licenses Off List Agent License Console License License
---------------------------------------------------------------------------------------------------------------------
List Price $[***] $[***] $[***]
---------------------------------------------------------------------------------------------------------------------
0 [***]% $[***] $[***] $[***]
1,000 [***]% $[***] $[***] $[***]
5,000 [***]% $[***] $[***] $[***]
10,000 [***]% $[***] $[***] $[***]
20,000 [***]% $[***] $[***] $[***]
25,000 [***]% $[***] $[***] $[***]
50,000 [***]% $[***] $[***] $[***]
---------------------------------------------------------------------------------------------------------------------
FOUNDRY PRICING:
---------------------------------------------------------------------------
Monthly Fee, per Foundry License $[***]
---------------------------------------------------------------------------
SUPPORT PORTAL PRICING:
Number of Agent Licenses Monthly Fee, Per Portal
---------------------------------------------------------------------------
5,000 $[***]
10,000 $[***]
50,000 $[***]
100,000 $[***]
---------------------------------------------------------------------------
. This pricing is based upon the number of licenses licensed at one time by a
distinct third party business.
. Healing Agent Licenses must be licensed in minimum increments of two
thousand (2000)
. This pricing is based upon a term for each license of 36 months; in the
event Samsung resells licenses with shorter terms, the following surcharge
on the fees set forth above, for each License apply: [***]% surcharge for a
twenty-four (24) month term and [***]% surcharge for twelve (12) month
term. In no event shall Samsung sell a license with a term of less than
twelve (12) months or more than thirty-six (36).
. The duration of each License shall be extended to be co-terminus with
subsequent orders of additional Licenses by the same department or division
of the same third party; decreased monthly fees per license shall
[***] CONFIDENTIAL MATERIAL REDACTED AND FILED SEPERATELY WITH THE COMMISSION
Xxxxxxx.xxx, Inc. Schedule A. PAGE 20
Proprietary and Confidential - For Intended Recipient Only
apply, if at all, only in the event the licenses are extended to be co-
terminus with subsequent orders. On a case-by-case basis and only upon
consent from Xxxxxxx.xxx, Samsung may sublicense additional licenses which
are not co-terminus.
. An Order in the form set forth in Section 6.2 must be issued to before
Licensee can distribute Products to third parties. Samsung must prepay
twelve (12) months of fees for each License; such prepayment is due thirty
(30) days from the date of the Order. Samsung must also pay a "catch up
prepay" for previously ordered Licenses in an amount equal to the number of
months each License is extended to be co-terminus with the current order
multiplied the monthly rate for the cumulative number of licenses in
accordance with the pricing above. Upon expiration of the twelve (12)
prepaid months, Samsung must prepay three (3) months in advance until the
applicable term expires.
. Additional discounts for a single Order for a distinct third party can be
earned by Samsung's prepayment of the applicable fees, as follows: in the
event Samsung prepays twenty-four (24) months, Samsung shall be entitled to
an additional [***]% discount, and in the event Samsung prepays thirty-six
(36) months, Samsung shall be entitled to an additional [***]% discount.
. License fees may not be prorated for any month, and License fees shall
start accruing on the 1/st/ day of the calendar month in which the Order is
received.
. Third Level Support is included in this pricing.
D. SPECIAL RESALE PRICING:
-----------------------
In the event Samsung seeks to sell Products to Internet Service Providers,
which will then distribute the Healing Agent to it's customers, Samsung
must obtain consent from Xxxxxxx.xxx and Xxxxxxx.xxx shall assist Samsung
in generating a license agreement which will allow the "sub-sub" license of
the Healing Agent. Samsung shall be entitled to offer a "lite" version of
the Healing Agent, which protects just the network connectivity and the
related Internet Service Provider software, for $[***] per Lite Healing
Agent License per year, with a three (3) year term.
III. TERRITORY
---------
Australia, New Zealand, India, Japan, Asean countries, Hong Kong, Taiwan, Korea,
China
For the period beginning on the Effective Date and ending on December 31, 2001,
Xxxxxxx.xxx shall not allow any other party to resell Xxxxxxx.xxx Products to
companies headquartered in the territory of the Republic of Korea. Xxxxxxx.xxx
may, however, sell directly to customers in Korea for such customer's internal
use, outsourcing services, or OEM purposes. This exclusive right to resell
Products in the Republic of Korea shall terminate in the event Samsung sells
competing products (as defined in Section 2.2(b) of the Agreement) in the
Republic of Korea
IV. MINIMUM COMMITMENTS
-------------------
Samsung agrees to pay Xxxxxxx.xxx as follows:
Period Minimum Commitment Minimum Commitment Due Date
---------------------------------------------------------------------------------------------------------------------
3/31/00 - 3/30/01 $[***] $[***]due June 30, 2000, or if later, upon initial delivery
of the Products tested on the Korean Wintel OS
$[***]due September 30*
$[***] due December 31, 2000*
----------------------------------------------------------------------------------------------------
3/31/01 - 3/30/02 $[***] $[***] due March 30, 2001*
$[***] due September 30, 2001*
----------------------------------------------------------------------------------------------------
3/31/02 - 3/30/03 $[***] $[***] due March 30, 2002*
$[***] due September 30, 2002*
----------------------------------------------------------------------------------------------------
3/31/03 - 3/30/04 $[***] $[***] due March 30, 2003*
$[***] due September 30, 2003*
----------------------------------------------------------------------------------------------------
*or, if later, upon initial delivery of the Products localized in the Korean
language
[***] CONDFIDENTIAL MATERIAL REDACTED AND FILED SEPERATELY WITH THE COMMISION
Xxxxxxx.xxx, Inc. Schedule A. PAGE 21
Proprietary and Confidential - For Intended Recipient Only
. License fees set forth in Orders and invoices shall be applied, at the
rates set forth in Section II above, towards the Minimum Commitment
applicable to the Period in which the Orders and invoices are issued.
Service fees shall also apply to the Minimum Commitment applicable to
the Period in which the Services were Ordered, but only up to
[***]percent ([***]%) of such Minimum Commitment.
. In the event aggregate fees set forth in Orders Such payments in
excess of the applicable Period's and invoices in a particular Period
exceed the Minimum Commitment shall not decrease subsequent applicable
Minimum Commitment, and/or to the Minimum Commitments or any portion
of the extent service fees exceed [***]percent ([***]%) applicable
Period's Minimum Commitment. of the applicable Minimum Commitment,
Samsung Notwithstanding the foregoing, Samsung shall no shall pay such
fees in accordance with Section longer be required to pay subsequent
Minimum II above and this Agreement. Commitments in the event all
payments to Xxxxxxx.xxx in the aggregate equal $[***], and
[***]percent ([***]%) of such payments were license fees. Thereafter,
Samsung shall be required to pay the fees as they become due, in
accordance with Section II above and the Agreement.
. Each Minimum Commitment or any portion thereof is forfeited at the
expiration of the applicable Period.
These Products and the Pricing for Outsourcing, Resale, and Special Resale
Pricing are subject to change upon thirty (30) days written notice.
[***] CONDFIDENTIAL MATERIAL REDACTED AND FILED SEPERATELY WITH THE COMMISSION
Xxxxxxx.xxx, Inc. Schedule A. PAGE 22
Proprietary and Confidential - For Intended Recipient Only
EXHIBIT B
RESELLER LICENSE GUIDE
(see attached)
Xxxxxxx.xxx, Inc. Exhibit B. PAGE 23
Proprietary and Confidential - For Intended Recipient Only
EXHIBIT C
Standard Technical Support and Maintenance
------------------------------------------
During the period for which Licensee has paid the applicable support and
maintenance fee, Licensee shall be entitled to the following:
Software Maintenance
Whenever Xxxxxxx.xxx makes Releases generally available at no additional charge
to its maintenance customers, then Xxxxxxx.xxx shall make the same available to
Licensee at no additional charge in the form such Releases are made available to
other Xxxxxxx.xxx customers licensing the same Software product licensed
hereunder. Licensee agrees to distribute Releases of the Product on to those
third parties properly licensed to use such Products. Licensee agrees to install
Releases within thirty (30) days of receipt and agrees that any such Releases
shall be subject to the terms and conditions applicable to the Software as set
forth in this Agreement. Unless separately agreed to in writing, Xxxxxxx.xxx has
no obligation to correct any errors or other problems with previous releases
after the thirty (30) day period following the release of the current Release
has expired. Xxxxxxx.xxx reserves the right to define the addition of a major
element in the Software as a new product and not a Release. Xxxxxxx.xxx shall
supply documentation for Releases at its sole discretion. Implementation and
training for Releases is available from Xxxxxxx.xxx at mutually agreeable times
and at Xxxxxxx.xxx's then-current standard time and material rates. Licensee
acknowledges and agrees that Xxxxxxx.xxx is under no obligation to release any
Releases to the Software. Xxxxxxx.xxx is under no obligation to modify the
Software to operate on any updated versions of operating systems or platforms.
"Releases" means generally available error corrections, bug fixes, and minor and
major releases for the same Software product licensed hereunder.
Software Technical Support
Xxxxxxx.xxx shall provide technical support by telephone, or other electronic
means available by Xxxxxxx.xxx, during the hours of 7 a.m. to 7 p.m. (Pacific
time), Monday through Friday, excluding Xxxxxxx.xxx holidays ("Business Hours"
or "Business Days", as applicable). All assistance shall be given in English
only to two (2) named employees of Licensee with sufficient knowledge of the
Software ("Designated Licensee Contacts"); such Designated Licensee Contacts may
be changed by Licensee from time to time by written notice to Xxxxxxx.xxx,
provided such Designated Licensee Contacts have attended appropriate Xxxxxxx.xxx
training related to the Software. Xxxxxxx.xxx shall not be required to deal with
any person other than the Designated Licensee Contacts. Additional Designated
Licensee Contacts can be purchased at Xxxxxxx.xxx's standard rates. All
additional assistance provided by Xxxxxxx.xxx to Licensee, including, but not
limited to, custom programming, data conversion and consulting shall be charged
at Xxxxxxx.xxx's then-current standard time and material rates.
Xxxxxxx.xxx shall use commercially reasonable efforts to remedy any reproducible
Error (as defined below) in the Software reported in writing by Licensee in
accordance with the Severity Levels set forth below. Xxxxxxx.xxx's obligation to
provide such services shall continue only so long as Licensee maintains the
current installed version of the Software, without modification by any party
other than Xxxxxxx.xxx and so long as the equipment on which the Software is
installed is configured as specified in the Documentation or as otherwise
specified by Xxxxxxx.xxx.
"Error" means a material failure of the Software to conform to its functional
specifications as described in the applicable Documentation, which failure is
demonstrable in the environment for which the Software was designed and causes
it to be inoperable, to operate improperly in the environment for which it was
designed, or produces results different from those described in the applicable
Documentation. The specific
Xxxxxxx.xxx, Inc. Exhibit C. PAGE 24
Proprietary and Confidential - For Intended Recipient Only
Severity Levels are set forth below. Failure resulting from Licensee's
negligence or improper use of the Software, modifications or damages to the
software by Licensee, and Licensee's use of the Software on a platform or with
an operating system other than the designated platform in the Documentation or
in combination with any third party software not provided by Xxxxxxx.xxx, are
not considered Errors.
"Severity 1 Error": The Software materially fails to conform to the functional
-------------------
specifications set forth in Documentation and Licensee is unable to proceed
without a fix to the problem or a work-around solution provided by Xxxxxxx.xxx
(no functionality, e.g., system down problems). Severity 1 Errors shall be
directly reported to Xxxxxxx.xxx Technical Support by email at addresses
provided by Xxxxxxx.xxx. All such Severity 1 Errors will be assigned to
Technical Support Specialist and a Support Manager. Xxxxxxx.xxx will initially
respond to Licensee within four (4) Business Hours of receipt of notice of the
Severity 1 Error by Xxxxxxx.xxx. This response will inform Licensee of the
identity of Xxxxxxx.xxx personnel assigned and of the plan to seek resolution.
Xxxxxxx.xxx will in addition provide regular status updates.
"Severity 2 Error": The Software contains major functional problems against the
------------------
Documentation, which Licensee is able to work around but the Software can only
be used to a limited degree (partial or limited functionality). Severity 2
Errors shall be directly reported to Xxxxxxx.xxx Technical Support by email. All
such problems. Xxxxxxx.xxx will initially respond to Licensee within one (1)
Business Day of receipt of the Severity 2 Error by Xxxxxxx.xxx. This response
will inform Licensee of the identity of Supplier personnel assigned and of the
plan to seek resolution. Xxxxxxx.xxx will in addition provide regular status
updates.
"Severity 3 Error": Software or documentation contains incorrect logic,
-------------------
incorrect descriptions, or functional problems, which Licensee is able to work
around, or where a temporary correction has been implemented (fully functional
but needs improvement). Xxxxxxx.xxx will initially respond to Licensee within
two (2) Business Days of receipt of the Severity 3 Error by Xxxxxxx.xxx. This
response will inform Licensee of the identity of the Xxxxxxx.xxx personnel
assigned and of the plan to seek resolution. Xxxxxxx.xxx, in addition, will
provide regular status updates provided however that Xxxxxxx.xxx shall have the
right to prioritize Severity 3 Errors and include corrections for such Errors in
future releases at its sole discretion.
Licensee Obligations. In addition to providing Xxxxxxx.xxx with full, good
faith cooperation and such information as may be required by Xxxxxxx.xxx in
order to perform the support and maintenance services, Licensee shall provide
Xxxxxxx.xxx with (i) specific detailed information concerning Licensee's use of
the Software as may be required for the performance of the support and
maintenance services and (ii) all necessary computer services information and
access to key personnel needed to provide the support and maintenance. If
Licensee fails or delays in its performance of any of the foregoing
responsibilities, Xxxxxxx.xxx shall be relieved of its obligations hereunder to
the extent such obligations are dependent upon such performance.
License Grant. In the event any work product or code is created in the
provision of support and maintenance services hereunder, such work product or
code shall be included within Software and licensed to Licensee under the terms
and conditions of this Agreement, and Xxxxxxx.xxx shall retain all right, title
and interest in and to such work product or code and any derivatives,
enhancements or modifications to the Software created by Xxxxxxx.xxx.
Exclusions. Xxxxxxx.xxx is not required to provide any maintenance services
relating to problems arising out of (i) changes to the operating system or
environment which adversely affect the Software; (ii) use of the Software in a
manner not specified in the Documentation; (iii) accident, negligence, or misuse
of the Software; or (iv) alterations or modifications to the Software by anyone
other than Xxxxxxx.xxx.
Xxxxxxx.xxx, Inc. Exhibit C. PAGE 25
Proprietary and Confidential - For Intended Recipient Only
EXHIBIT D
MARKETING
---------
Xxxxxxx.xxx and Samsung agree to the following terms with respect to marketing
efforts as set forth below:
1. Marketing Efforts. Samsung shall, at its own expense, use its commercially
-----------------
reasonable efforts to actively promote, market and license the Copies to its
customers and prospective customers. Xxxxxxx.xxx shall provide Samsung with
Marketing Materials for this purpose. Samsung agrees (i) to conduct its
marketing, promotion and sales activities in a manner that reflects favorably at
all times on the Products and the good name, goodwill and reputation of
Xxxxxxx.xxx; (ii) to avoid deception, misleading or unethical practices that are
or might be detrimental to Xxxxxxx.xxx or the public, including but not limited
to, disparagement of Xxxxxxx.xxx or its Products, and acceptance or payment of
bribes, kickbacks or secret profits; (iii) to make no representations,
warranties or guarantees, whether express or implied, to End-Users or other
third parties with respect to the specifications, features or capabilities of
Products other than those stated in writing in the Documentation or Marketing
Materials; (iv) not to publish or use (or cooperate in the publication or use
of) any written or printed materials about the Products not provided by
Xxxxxxx.xxx without Xxxxxxx.xxx's prior written consent or any misleading or
deceptive advertising material.
2. Trademark License. Samsung agrees that Xxxxxxx.xxx may refer to Samsung by
-----------------
trade name and trademark, and may briefly describe Samsung's business, in
Xxxxxxx.xxx's marketing materials and web site. Each party hereby grants to the
other party a royalty-free, non-exclusive, non-transferable (except as set forth
in Section 15.2 of the Agreement) license to use the granting party's Marks
solely in connection with the sales and marketing of the Products pursuant to
this Agreement.
(a) Each party agrees to comply with the other party's then-current
Trademark Usage Guidelines.
(b) Each party shall ensure that all advertisements, marketing materials
or other documents on which the other party's Marks are placed (the "Marked
Materials") shall not reflect adversely upon the good name of other party. Each
party acknowledges that if the Marked Materials distributed by such party are of
inferior quality in design, material or workmanship, the substantial good will
which the other party has established and now possesses through its Marks would
be impaired. Accordingly, each party agrees that the Marked Materials shall be
of high standard and of such nature, style, appearance and quality as shall be
adequate and suited to the protection of the other party's Marks and the
goodwill associated therewith.
(c) Neither party shall use the other party's Marks, or any part thereof,
as part of or in conjunction with any other names or trademarks except with the
other party's prior written approval. Neither party shall not use the
Xxxxxxx.xxx Marks or any confusingly similar or diluting xxxx, term or design,
except as expressly authorized in this Agreement, and Samsung shall not attempt
to register or aid any third party in using or attempting to register any such
xxxx, term or design. Samsung shall not use any of the Xxxxxxx.xxx Marks in any
manner that will indicate that it is using such xxxx other than as a licensee.
(d) Refusal to submit samples, or non-compliance with the provisions of
this Agreement and/or the other party's Trademark Usage Guidelines, will result
in the licensor party's right to revoke other party's license to use the
licensor party's Marks.
(e) Each party's Marks and the goodwill associated therewith are and
remain such party's exclusive property. The other party shall acquire no right,
title or interest in a licensor party's Marks or the goodwill associated
therewith, other than the limited license and right to use such Marks as set
forth by the express terms of this Agreement. All usage of the other party's
Marks shall inure to the licensor party's
Xxxxxxx.xxx, Inc. Exhibit C. PAGE 26
Proprietary and Confidential - For Intended Recipient Only
benefit. Neither party shall at any time do or suffer to be done any act which
would impair the other party's Marks or the goodwill associated therewith. Each
party shall take any actions reasonably requested by the other party, including
the execution of instruments, that may be necessary or appropriate to register
or otherwise confer or perfect the other party's rights in such party's Marks in
any jurisdiction in such party's name. Each party agrees that it will take no
action inconsistent with the other party's ownership of and interest in the
other party's Marks, or assist any third party in doing any of the same.
(f) Under no circumstances will anything in this Agreement be construed as
granting, by implication, estoppel or otherwise, any licenses or rights in the
other party's Marks not expressly granted in this Section.
(g) Each party shall promptly notify the other party in writing of any
actual or suspected infringement of the other party's Marks by a third party of
which the party becomes aware and of any available evidence thereof. Each party
shall cooperate, at the other party's expense, with the other party's efforts to
investigate, terminate and recover damages for any actual or suspected
infringement of such other party's Marks.
3. Co-Marketing.
------------
(a) General Announcement. Both parties may communicate the general
existence of this Agreement to other parties, including, without limitation, the
general marketing, reseller and cooperative development aspects, provided,
however, that specific terms and conditions, including without limitation,
specific pricing, shall be deemed Confidential Information of Xxxxxxx.xxx and
subject to the confidentiality obligations set forth in Section 11,
notwithstanding subsections (i), (ii), or (iii) of Section 11.2.
(b) Joint Press Release. Both parties will cooperate to provide joint
press releases and press and analyst communications regarding the relationship
from time to time as mutually agreed upon. At a minimum, the parties will make
one joint press release announcing the partnership shortly after this Agreement
is signed.
(c) Joint Marketing. Xxxxxxx.xxx and Samsung will reasonably cooperate on
joint marketing, including events, seminars, customer mailings, customer success
stories and case studies, supporting quotes, and other activities as mutually
agreed upon. (d) Web Site Presence and Links. Samsung and Xxxxxxx.xxx will
cooperate to develop and publish information on their respective web sites
promoting the relationship. Samsung and Xxxxxxx.xxx each agree to include
hyperlinks to the other party's web sites. When the hyper-links are activated,
the End-User shall be linked directly to the parties respective Home Pages and
not to any other Web site page. The materials and any information made available
on each party's Web site are provided "AS IS AND WITHOUT WARRANTY OF ANY KIND".
Materials and information made available on a party's Web site shall not in
anyway be deemed a representation or warranty of that party with respect to the
Products.
(e) Customer Reference. Samsung will serve as a reference for Xxxxxxx.xxx
and the Products, including, without limitation, providing executive quotes and
having Samsung representatives speak upon Xxxxxxx.xxx's reasonable request with
press, analysts, and prospective and current Xxxxxxx.xxx customers.
(f) Success Story. Samsung agrees to serve as the subject of a collateral
piece discussing Samsung's use of the Product. Such collateral piece will be
authored by Xxxxxxx.xxx and subject to Samsung's review and approval, which
approval shall not be unreasonably delayed or withheld. The target audience for
such collateral piece will be Xxxxxxx.xxx's prospective customers.
Xxxxxxx.xxx, Inc. Exhibit C. PAGE 27
Proprietary and Confidential - For Intended Recipient Only
