EXHIBIT 10.5
DISTRIBUTION AGREEMENT
BETWEEN
ATIO CORPORATION USA, INC.
AND
ATIO CORPORATION INTERNATIONAL, INC.
NOVEMBER 14, 1997
THIS AGREEMENT is made and entered into this 14 day of November, 1997,
the effective date by and between Venturian Software Enterprises, Inc. ( a
company which is changing its name to Atio Corporation USA, Inc. and will be
referred to in this Agreement as "Atio USA"), with its principal place of
business in Hopkins, Minnesota, and Atio Corporation International, Inc.
("DISTRIBUTOR"), with its principal place of business in Hopkins, Minnesota.
WHEREAS, Atio USA is engaged in the marketing, maintenance and support
of computer telephony products and related services, including, among others,
the CyberCall Products (as hereinafter defined); and
WHEREAS, DISTRIBUTOR proposes to engage in the marketing and
distribution of the CyberCall Products to end users outside the United States,
Canada, and Mexico ("North America") (the "Territory"); and
WHEREAS, Atio USA and DISTRIBUTOR each desire that Atio USA grant to
DISTRIBUTOR certain distribution rights with respect to the CyberCall Products,
including the right to appoint dealers to market and distribute the same to end
users subject to the limitations set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements, promises and covenants contained herein, Atio USA and DISTRIBUTOR
agree as follows:
1. Products Covered by Agreement
1.1 The products covered by this Agreement shall be those products
listed in Schedule I of this Agreement and any new version, revision, update or
upgrade thereof which is furnished to DISTRIBUTOR by Atio USA in accordance with
paragraph 8.1(c) (collectively the CyberCall Products"); provided, however, that
in its sole discretion, Atio USA may at any time:
a. notify DISTRIBUTOR in writing of Atio USA's intention to add to
the CyberCall Products any other software products which Atio USA then has the
authority to market, together with the prices to be paid by DISTRIBUTOR with
respect to such products, whereupon such additional software products shall
become CyberCall Products covered by this Agreement unless DISTRIBUTOR, within
thirty (30) days of receiving such notice, gives written notice to Atio USA that
DISTRIBUTOR rejects the proposed additional products;
b. upon at least thirty (30) days advance written notice to
DISTRIBUTOR, eliminate a product from the CyberCall Products if and when Atio
USA ceases to market such product to end users; or
c. upon at least thirty (30) days advance written notice to
DISTRIBUTOR, modify the specifications or substitute components of the CyberCall
Products; provided that such modification or substitution does not materially
diminish the functional capabilities of the CyberCall Products.
2. Appointment of Distributor and Dealers
2.1 Appointment of Distributor. Subject to the terms and conditions of
this Agreement, Atio USA hereby appoints DISTRIBUTOR, and DISTRIBUTOR hereby
agrees to become, a distributor of the CyberCall Products. Atio USA grants to
DISTRIBUTOR, for the term of this Agreement, the exclusive right and license to
purchase from Atio USA and resell licenses for use of the CyberCall Products
within the Territory defined in this Agreement.
2.2 Appointment of Dealers. Throughout the term of this Agreement,
DISTRIBUTOR may appoint and authorize Dealers (including Value Added Resellers)
to market and distribute the CyberCall Products and to purchase from DISTRIBUTOR
and resell to end users the same Product Licenses as DISTRIBUTOR may purchase
from Atio USA
hereunder; provided that: a) any such dealer appointment must be pursuant to a
written Dealer Agreement in a form approved in advance by Atio USA; which
approval shall not be unreasonably withheld; b) DISTRIBUTOR shall not authorize
any third party to market or distribute the CyberCall Products or sell licenses
for the use thereof without the advance written approval of Atio USA, which
approval shall not be unreasonably withheld, unless such authorization
terminates on or before the effective date of termination of this Agreement; and
c) if, with Atio USA's advance written approval, which approval shall not be
unreasonably withheld, DISTRIBUTOR enters into any agreement with any third
party authorizing such third party to engage in any such activities beyond the
effective date of termination of this Agreement, DISTRIBUTOR will assign all of
its rights under such agreement to Atio USA concurrently with the termination of
this Agreement.
3. Geographic Scope
3.1 Geographic Scope. Atio USA hereby appoints DISTRIBUTOR as the
exclusive distributor of the CyberCall Products outside North America ("▇▇▇
▇▇▇▇▇▇▇▇▇") during the term of this Agreement. As such, DISTRIBUTOR may,
directly and through its Dealers, distribute the CyberCall Products to end users
for installation and use at sites located anywhere within the Territory. Atio
USA will not distribute the CyberCall Products for installation and use within
the Territory during the term of this Agreement except through DISTRIBUTOR.
DISTRIBUTOR will not market or distribute the CyberCall Products or sell
licenses for their installation or use outside the Territory, nor will
DISTRIBUTOR authorize any other person or party to engage in any such activities
outside the Territory. Distributor represents and warrants that, as of the
Effective Date of this Agreement, it has not granted to any third party any
right to
engage in any such activities outside or within the Territory except for those
parties identified in Schedule IV.
3.2 Atio USA may license certain technology related to the CyberCall
Products to equipment manufacturers or software producers located in North
America who export their products to the Territory and that desire to make their
products compliant with the functional and operational specifications of the
CyberCall Products. In no event will any such license arrangement be deemed a
sale or distribution of the CyberCall Products for purposes of paragraph 3.1
above, even if the rights granted to such persons include the right to market,
distribute and sell licenses for use of the CyberCall Products on an OEM or VAR
basis, provided, however, that Atio USA agrees to facilitate DISTRIBUTOR's
partnering with such persons in the Territory.
4. Marketing and End User Support by Distributor
4.1 DISTRIBUTOR'S Obligations. Throughout the term of this Agreement,
DISTRIBUTOR will:
a. employ reasonable resources and efforts to market and support
the CyberCall Products so as to promote the sales of licenses for the use of the
CyberCall Products within the Territory;
b. offer to all end user customers who purchase licenses for use
of the CyberCall Products from DISTRIBUTOR or its Dealers an opportunity to
purchase annual maintenance agreements with respect thereto on such specific
terms and at such prices as DISTRIBUTOR and its Dealers are able to negotiate
with them. DISTRIBUTOR will promptly notify Atio USA of each end user customer
that purchases or renews such an annual maintenance agreement. With each such
notice, DISTRIBUTOR will submit to Atio USA an
order for maintenance which identifies the end user customer, states the number
of seats authorized by the applicable license, and specifies the beginning and
end dates of the annual maintenance period. DISTRIBUTOR will furnish to all such
end users who are covered by active annual maintenance agreements all new
versions, revisions, updates or upgrades of the CyberCall Products and the
benefit of problem resolution services that Atio USA furnishes to DISTRIBUTOR
pursuant to paragraph 8.1(d);
c. through its field sales and support offices, provide to all end
user customers who purchase maintenance agreements from DISTRIBUTOR or one of
its Dealers, at such prices and on such terms as DISTRIBUTOR may negotiate with
its customers, first level support with respect to the CyberCall Products. As
used herein, "first level support" means telephone support with respect to
failure of the CyberCall Products to perform as described in the user
documentation;
d. through its primary technical support center, provide to all
end user customers who purchase maintenance agreements from DISTRIBUTOR or one
of its Dealers, at such prices and on such terms as DISTRIBUTOR may negotiate
with its customers, second level support with respect to the CyberCall Products.
As used herein, "second level support" means technical and user level support
with respect to failures of the CyberCall Products to perform as described in
the user documentation;
e. refer to Atio USA all failures of the CyberCall Products to
perform as described in the user documentation that are not resolved by
DISTRIBUTOR'S first and second level support efforts. Only DISTRIBUTOR'S
integration team personnel may contact Atio USA for such assistance;
f. with respect to each CyberCall Product license sold by
DISTRIBUTOR or one of its Dealers to an end user customer, DISTRIBUTOR will pay
to Atio USA, annually in advance for each year in which such end user purchases
or renews a maintenance agreement from DISTRIBUTOR with respect thereto, fifty
percent (50%) of the Atio USA Manufacturer's Suggested Retail Price for the
CyberCall Product annual end user maintenance fee ("MSRP") in effect at the
commencement of the annual maintenance period (or at that price or percentage of
MSRP as mutually agreed to by the parties on a country by country basis);
g. provide regular, not more than monthly, information on sales
activities and product problem identification (including any solutions to such
problems developed by DISTRIBUTOR) concerning the CyberCall Product within the
Territory. This may be a by product of any communications and support system
that will be established between the parties;
h. provide monthly forecasts of sales of CyberCall Product
licenses by the Distributor and its Dealers, rolling forward for at least twelve
months;
i. provide ongoing information to Atio USA regarding market
potential by market segment, strategy, tactics, region and target accounts and
discuss such information with Atio USA at least once in each calendar quarter
(as used in this Agreement, "calendar quarter" means January 1 March 31, April 1
- June 30, July 1 - September 30, and October 1 - December 31);
j. comply with all applicable treaties, conventions, and
governmental laws, rules and regulations, both domestic and foreign, which bear
upon any action taken under or pursuant to this Agreement;
k. refrain during the term of this Agreement from marketing,
distributing or selling any other product which is competitive with any of the
CyberCall Products;
l. at its own expense, prepare such versions of the CyberCall
Products and pertinent documentation in languages other than English as may be
appropriate for marketing the same in particular locations throughout the
Territory. Atio USA hereby grants to DISTRIBUTOR the rights and license
necessary to engage in such activities, and, upon reimbursement to DISTRIBUTOR
of the expenses for preparing such versions, DISTRIBUTOR shall assign, transfer
and convey to Atio USA all right, title and interest, including copyright
ownership, of all such versions of the CyberCall Products and related
documentation prepared by or for DISTRIBUTOR; and
m. throughout the term of this Agreement, DISTRIBUTOR shall, and
shall require its Dealers to, refer exclusively to Atio USA any potential
dealers or end user customers outside the Territory from whom DISTRIBUTOR or any
of its Dealers receives inquiries concerning any of the CyberCall Products.
5. Purchase and Sale of Product Licenses
5.1 Purchase and Sale of Product Licenses. Throughout the term of this
Agreement, DISTRIBUTOR shall purchase from Atio USA, and Atio USA shall sell to
DISTRIBUTOR, such licenses for use of the CyberCall Products as DISTRIBUTOR
shall order from time to time from Atio USA; provided, however, that each order
submitted by DISTRIBUTOR shall set forth the name and address of the end user
customer and any other information that appears in purchase order forms, which
shall not contain any terms or conditions in addition to or contrary to the
terms of this Agreement, furnished by Atio USA, shall set forth the number of
seats for which the license is ordered, shall be subject to acceptance by Atio
USA and shall be governed by the terms and conditions of this Agreement. Any
other information that appears in the purchase order form shall be considered
void unless agreed to in writing by Distributor. Any
purchase order not accepted by Atio USA within thirty (30) days from date of
submission will be deemed rejected. Distributor may cancel at any time any
purchase order prior to the date of shipment set forth in the purchase order. No
additional or inconsistent terms of any purchase order submitted by DISTRIBUTOR
shall be binding unless specifically agreed to in writing by Atio USA. Each such
license shall be accompanied by one copy of the CyberCall Products and related
user documentation and shall specify the number of seats for which it may be
used..
5.2 Requirement of Signed End User License Agreement. DISTRIBUTOR shall
not release a copy of any CyberCall Product to any third party except for end
users who have first entered into a license agreement with Atio USA for the use
thereof. Any such license agreement with Atio USA shall be substantially in the
form attached hereto as Schedule III or such other form as may be furnished by
Atio USA or by DISTRIBUTOR with written approval by Atio USA, which approval
shall not be unreasonably withheld, and must be signed by a duly authorized
representative of the end user customer. It shall be adequate if the customer's
signed agreement to be bound by the terms and conditions of the Atio USA license
is set forth in a contract with DISTRIBUTOR to which the Atio USA license is
attached as an exhibit.
6. Trial and Test Site Licenses
6.1 During the term of this Agreement, Atio USA will, at the request of
DISTRIBUTOR, grant limited trial or test site licenses for the use of the
CyberCall Products to prospective end user customers of DISTRIBUTOR or its
Dealers. Each such license: a) will be in writing and signed by a duly
authorized representative of the prospective customer; b) will be limited in
duration to a period not exceeding thirty (30) days; c) will restrict the use of
the CyberCall Products to trial and testing purposes only; and d) will require
that, at the end of the
trial or test period, the end user will either: (i) enter into a fee bearing
license for use of the CyberCall Products; or (ii) return or destroy all copies
of the CyberCall Products
7. Training of Distributor' Dealers
7.1 Training of DISTRIBUTOR's Dealers. DISTRIBUTOR will provide all
necessary training to its Dealers.
8. Product Support, Consultation and Updates
8.1 Support, Consultation and Updates. Throughout the term of this
Agreement, Atio USA will:
a. consider business proposals from DISTRIBUTOR for participation
in shared promotional activities within the Territory, including press
relations, exhibitions, seminars, and strategic advertising. Where this activity
produces inquiries and opportunities within the Territory, Atio USA will pass
these for immediate follow up to DISTRIBUTOR. Where this activity produces
inquiries and opportunities outside the Territory, DISTRIBUTOR will pass these
for immediate follow up to Atio USA;
b. for a period of thirty (30) days following delivery of the
CyberCall Products to each end user customer who purchases a license for use of
the same from DISTRIBUTOR or one of its Dealers, and for as long thereafter as
such end user customer purchases annual maintenance with respect thereto,
furnish DISTRIBUTOR with such telephone support as DISTRIBUTOR may request with
respect to failures of the CyberCall Products to perform for such end user
customer as described in the user documentation. DISTRIBUTOR will pay all long
distance telephone charges associated with such support;
c. promptly furnish DISTRIBUTOR, for distribution to end user
customers who are entitled thereto under existing warranty or maintenance
agreements, such new versions,
revisions, updates or upgrades of the CyberCall Products and problem resolution
services as Atio USA provides generally to end users of the CyberCall Products
who subscribe for CyberCall Product maintenance agreements with Atio USA or who
are entitled thereto under warranty; and
d. throughout the term of this Agreement, Atio USA shall refer
exclusively to DISTRIBUTOR any potential dealers or end user customers located
inside the Territory from whom Atio USA receives inquiries concerning any of the
CyberCall Products.
9. Shipment and Delivery
9.1 Shipment, Delivery, Title and Risk of Loss. All CyberCall Products
will be delivered to DISTRIBUTOR F.O.B. (as such term is defined in Publication
No. 460 of the International Chamber of Commerce) . Atio USA's shipping point,
freight, shipping and insurance charges prepaid, and delivery to DISTRIBUTOR
will be deemed to occur upon delivery to the common carrier. In the absence of a
specific, written request from DISTRIBUTOR, Atio USA will select the common
carrier and the method of shipment. DISTRIBUTOR will pay (or reimburse Atio USA
for) all freight, shipping and insurance costs associated with delivery of
products to DISTRIBUTOR. Title to and ownership of all tangible items, and risk
of loss of or damage to products in shipping, shall pass to DISTRIBUTOR upon
delivery to the common carrier.
10. Pricing, Invoicing and Payment
10.1 Prices. For each CyberCall Product license purchased by
DISTRIBUTOR from Atio USA during the first twelve months of this Agreement,
DISTRIBUTOR will pay to Atio USA the amount specified in Schedule II or a
mutually agreed to price for the number of seats for which the license is
purchased. For each CyberCall Product license purchased by DISTRIBUTOR from Atio
USA after the first twelve months of this Agreement,
DISTRIBUTOR will pay to Atio USA the most favorable price concurrently granted
by Atio USA to any distributor of the CyberCall Products.
10.2 Dealer Kits. For a period of ninety days following the effective
date of this Agreement, DISTRIBUTOR may purchase an unlimited number of Dealer
Kits from Atio USA at Atio USA's cost of producing such Dealer Kits. Each Dealer
Kit shall include a five seat license for use of the CyberCall Products by
DISTRIBUTOR or one of its Dealers for non-production marketing or promotion of
the CyberCall Products or for training. Dealer Kits shall only be sold by the
Distributor to Dealers who desire to use the CyberCall Products for marketing,
promotion or training purposes at more than one location and may not otherwise
be resold by DISTRIBUTOR or its Dealers.
10.3 Suggested Prices for Reference Only. Atio USA's suggested end user
prices are used herein solely as a reference point and for the convenience of
the parties. DISTRIBUTOR and its Dealers shall be free to set their own prices
for the CyberCall Products, and Atio USA shall not restrict the freedom of
DISTRIBUTOR or its Dealers to set their own prices for any products or services
they sell. DISTRIBUTOR and its Dealers shall each be free to publicize and
advertise its chosen resale pricing for the CyberCall Products. DISTRIBUTOR will
keep Atio USA's discount schedules in strict confidence and will not disclose
the same to any Dealer, end user or other third party.
10.4 Sales Taxes. DISTRIBUTOR will pay or reimburse Atio USA for any
sales, use, excise or other taxes or other governmental charges which Atio USA
is required to pay or collect by virtue of the payment of royalties or other
amounts under this Agreement, exclusive of taxes upon the income of Atio USA.
10.5 Invoicing. Upon shipment of any CyberCall Product ordered by
DISTRIBUTOR, Atio USA shall invoice DISTRIBUTOR for each unit of product
shipped, including the price to be paid by DISTRIBUTOR therefor, and also any
applicable taxes, shipping and insurance charges pertaining thereto which
DISTRIBUTOR owes to Atio USA. .. Upon receipt of notice that an end user
customer of DISTRIBUTOR or of one of its Dealers has purchased or renewed annual
maintenance for the CyberCall Products and an accompanying order for
maintenance, Atio USA will invoice DISTRIBUTOR for the amount due to Atio USA
with respect thereto. Atio USA will invoice DISTRIBUTOR for other charges
permitted under this Agreement at or about the times such charges are incurred.
10.6 Payment. Payment terms of all invoices issued by Atio USA to
DISTRIBUTOR are net sixty (60) days from date of invoice. Any amount not paid
when due will accrue a finance charge at the rate of one and one-half percent
(1-1/2%) per month or the highest rate permitted by law, whichever is less,
until fully paid. In the event that DISTRIBUTOR fails to pay any Atio USA
invoice when due, Atio USA will have the right to require prepayment or other
payment arrangements satisfactory to Atio USA as a condition of any future
deliveries of products or services to DISTRIBUTOR. All payments shall be made in
United States Dollars, free of any withholding tax and free of any currency
controls or other restrictions.
11. Distributor's Minimum Performance Objectives
11.1 Notwithstanding anything to the contrary in this Agreement, in no
event shall DISTRIBUTOR be required to purchase any specific amount of products
and/or services under this Agreement.
12. Reports, Records and Audits
12.1 Records and Audits. Throughout the term of this Agreement and for
a period of four years thereafter, DISTRIBUTOR will keep complete and accurate
written books, accounts and records of such information as may be necessary to
determine its compliance with the terms and conditions of this Agreement.
DISTRIBUTOR will allow an independent certified public accountant serving as
Atio USA's agent, upon thirty days advance written notice, and only once per
calendar year unless substantial non-compliance by DISTRIBUTOR is discovered, to
inspect, audit and analyze the books, records, documents and accounting
procedures and practices of DISTRIBUTOR relevant to this Agreement. Any such
auditor shall agree in advance to treat such information in the manner required
by paragraph 12.2. Any such inspection, audit and analysis shall be conducted
during normal business hours at the place(s) where such books, accounts and
records are normally maintained. Atio USA shall bear its own costs associated
with any such inspection, audit and analysis. Upon completion of any such audit,
the auditor shall render a written report stating whether or not DISTRIBUTOR
appears to be in compliance with this Agreement.
12.2 Confidential Treatment. Information furnished or otherwise made
available to the auditor pursuant to this section 12 will be held in confidence
by the auditor, will be used by the auditor solely for the purpose of verifying
compliance with this Agreement and rendering a summary report as specified in
paragraph 12.1, will not be disclosed by the auditor to any person or party
other than Atio USA and the DISTRIBUTOR, and will not be disclosed to Atio USA
unless it is the auditor's opinion that DISTRIBUTOR is not in substantial
compliance with this Agreement, in which case the auditor may disclose to Atio
USA and DISTRIBUTOR only information concerning the claimed noncompliance. Once
the information has been disclosed to
Atio USA, the parties will confer with respect to the claimed noncompliance to
determine mutually whether DISTRIBUTOR is in substantial compliance with this
Agreement.
13. Trademarks, Trade Names and Promotional Materials
13.1 Atio USA Name and Trademarks. Throughout the term of this
Agreement, DISTRIBUTOR and its Dealers shall market the CyberCall Products only
under the trademark "CYBERCALL" or such trademarks and trade names as Atio USA
shall designate. The name Atio USA and the trademark CYBERCALL are and shall
remain the exclusive property of Atio USA . This Agreement conveys no rights in
Atio USA's name or trademarks to DISTRIBUTOR, and neither DISTRIBUTOR nor its
Dealers shall use Atio USA's name or trademarks except, in accordance with
proper trademark usage, for the purpose of marketing and distributing the
CyberCall Products.
13.2 DISTRIBUTOR Name and Trademarks. This Agreement conveys no rights
in DISTRIBUTOR'S name or trademarks to Atio USA. Atio USA shall neither have nor
claim any right, title or interest in DISTRIBUTOR'S name or any DISTRIBUTOR
trade name, trademarks or service marks.
13.3 Promotional and Advertising Materials. To the extent DISTRIBUTOR
so desires, Atio USA will furnish DISTRIBUTOR with copies of advertising,
marketing and related literature and materials produced by Atio USA, in return
for which DISTRIBUTOR will pay Atio USA an amount equal to Atio USA's actual
cost of producing copies furnished to DISTRIBUTOR, plus shipping and related
costs. DISTRIBUTOR may, at its own expense, produce advertising, marketing and
related literature and materials pertaining to the CyberCall Products for the
purposes of advertising and marketing the CyberCall Products, provided that
DISTRIBUTOR and its Dealers make no unauthorized use of Atio USA's name or
trademarks.
DISTRIBUTOR will not make any claims or representations or give any warranties
or guaranties regarding the CyberCall Products that are inconsistent with, or in
addition to, those made by Atio USA, except at its own risk and liability.
14. Atio USA Warranties and Warranty Disclaimer
14.1 General. Atio USA represents and warrants that, as of the
effective date of this Agreement: and throughout the Term of this Agreement i)
Atio USA has the lawful authority to enter into this Agreement and perform all
of its duties and obligations contained herein including compliance with all
representations; ii) Atio USA is free of any obligation or restriction that
would prevent it from entering into or performing all of its duties and
obligations under this Agreement; and iii) ATIO USA has sufficient right, title
and interest in the CyberCall Products to grant the rights contained herein to
DISTRIBUTOR or any Dealer; .. Atio USA will not during the term of this
Agreement enter into any other agreement, grant any license, undertake any
obligation or commit any act which would prevent its performance or limit the
rights of DISTRIBUTOR hereunder. Atio USA hereby passes through to DISTRIBUTOR,
its Dealers and customers the benefit of all warranties, indemnities and related
undertakings that appear for their benefit in Atio USA's agreement(s) with its
supplier(s). Upon execution of this Agreement, Atio USA will provide DISTRIBUTOR
with a copy of the pertinent sections of such agreement(s).
14.2 CYBERCALL PRODUCT WARRANTY DISCLAIMER. ALL CYBERCALL PRODUCTS ARE
FURNISHED BY ATIO USA AND ACCEPTED BY DISTRIBUTOR "AS IS," WITHOUT ANY WARRANTY
WHATSOEVER EXCEPT FOR SUCH WARRANTIES CONTAINED IN SECTION 14.1 ABOVE AND ANY
OTHER WARRANTIES, IF ANY, AS DISTRIBUTOR, ITS DEALERS OR END USERS MAY RECEIVE,
BY OPERATION OF
LAW OR OTHERWISE, FROM A THIRD PARTY MANUFACTURER OR THIRD PARTY LICENSOR OF
SUCH PRODUCTS. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE
SPECIFICALLY EXCLUDED AND DISCLAIMED BY ATIO USA. ATIO USA DOES NOT WARRANT THAT
THE CYBERCALL PRODUCTS OR THE ASSOCIATED USER DOCUMENTATION WILL MEET
DISTRIBUTOR'S, A DEALER'S OR ANY END USER'S REQUIREMENTS OR THAT THE OPERATION
OF LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY
PROVIDED IN SUCH WARRANTIES, IF ANY, AS DISTRIBUTOR, ITS DEALERS OR END USERS
MAY RECEIVE FROM THIRD PARTY MANUFACTURERS OR LICENSORS, THE ENTIRE RISK AS TO
THE QUALITY AND PERFORMANCE OF PRODUCTS FURNISHED BY ATIO USA IS WITH THE USER.
15. LIMITATION OF ATIO USA LIABILITY
15.1 LIMITATION OF ATIO USA LIABILITY. IN NO EVENT WILL ATIO USA BE
LIABLE TO DISTRIBUTOR, ANY DEALER OR END USER, OR ANY OTHER PERSON FOR ANY LOST
PROFITS, LOST SAVINGS, LOST DATA, OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL
DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE
FURNISHED OR TO BE FURNISHED BY ATIO USA UNDER THIS AGREEMENT OR THE USE
THEREOF, EVEN IF ATIO USA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR
DAMAGE, AND THE AGGREGATE LIABILITY OF ATIO USA UPON ANY CLAIMS HOWSOEVER
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS OR SERVICES
FURNISHED OR TO BE FURNISHED BY ATIO USA
UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE AMOUNT PAID
TO ATIO USA UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT NOTHING IN THIS
AGREEMENT SHALL OPERATE TO RELIEVE ATIO USA FROM LIABILITY FOR THE
INDEMNIFICATION CONTAINED IN SECTION 17, ITS OWN GROSSLY NEGLIGENT, WILLFUL OR
WANTON RECKLESSNESS OR INTENTIONAL TORTS, INCLUDING DAMAGES TO PROPERTY OR
INJURY OR DEATH TO PERSONS.
16. Distributor Warranties
16.1 DISTRIBUTOR represents and warrants that, as of the effective date
of this Agreement, it has the lawful authority to enter into this Agreement and
is free of any obligation or restriction that would prevent it from entering
into or performing under this Agreement. DISTRIBUTOR will not during the term of
this Agreement enter into any other agreement, grant any license, undertake any
obligation or commit any act which would prevent its performance or limit the
rights of Atio USA hereunder.
17. Indemnification
17.1 DISTRIBUTOR will indemnify and hold Atio USA harmless from and
against any and all claims, liability, costs and expenses (including reasonable
attorneys' fees) arising out of (a) the improper installation, support or
maintenance of the CyberCall Products by DISTRIBUTOR or its Dealers (except for
improper installation, support or maintenance made in reliance upon information,
advice or instructions received from Atio USA in writing, including CyberCall
Product documentation, specifications or training), (b) any misrepresentations
by DISTRIBUTOR or its Dealers in respect of the CyberCall Products (except for
misrepresentations made in reliance upon information, advice or instructions
received from Atio
USA in writing, including CyberCall Product documentation, specifications, or
training)), or (c) any grossly negligent, wrongful or intentional acts or
omissions on the part of DISTRIBUTOR or its Dealers which give rise to claims
against Atio USA by third parties. EXCEPT FOR THE FOREGOING, IN NO EVENT WILL
DISTRIBUTOR BE LIABLE TO ATIO USA FOR ANY LOST PROFITS, LOST SAVINGS, OR OTHER
SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS
AGREEMENT, EVEN IF DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS
OR DAMAGE; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT SHALL OPERATE TO
RELIEVE DISTRIBUTOR FROM LIABILITY FOR THE INDEMNIFICATION CONTAINED IN THIS
SECTION 17 OR ITS OWN NEGLIGENT, WILLFUL OR WANTON RECKLESSNESS OR INTENTIONAL
TORTS, INCLUDING DAMAGES TO PROPERTY OR INJURY OR DEATH TO PERSONS.
17.2 Atio USA will indemnify and hold DISTRIBUTOR harmless from and
against any and all claims, liabilities, costs and expenses (including
reasonable attorney's fees) arising out of Atio USA's grossly negligent,
wrongful or intentional acts or omissions which give rise to claims against
DISTRIBUTOR by third parties.
7.3 Regarding any claim or action brought against the DISTRIBUTOR, its
parent or their subsidiaries or affiliates by any person or entity, based on or
in connection with a claim that the CyberCall Product or the DISTRIBUTOR's use
of, possession of or dealings with the CyberCall Product infringes a title,
non-disclosure agreement, patent, copyright trademark, trade secret,
intellectual property or any other proprietary right, Atio USA shall defend such
claim or action (including appeals) at its expense and shall pay (when due) all
costs, attorney(s) fees, damages, settlements and other amounts awarded or
agreed to in connection with any such claim
or action. If the DISTRIBUTOR is enjoined, precluded or advised by its counsel
or Atio USA to refrain from using the CyberCall Product because of any such
infringement or any infringement claim or allegation, Atio USA shall
immediately, according to mutually acceptable terms, and at Atio USA's expense,
either: a) procure for the DISTRIBUTOR the right to continue using the CyberCall
Product; b) after notification to the DISTRIBUTOR, replace or modify same so
that it becomes non-infringing, providing that, in the DISTRIBUTOR's opinion,
the replacement or modification will not materially and adversely affect the
performance of the CyberCall Product or significantly lessen in any the utility
of the CyberCall Product to the DISTRIBUTOR or c) after demonstrating to the
DISTRIBUTOR the failure of good faith effort to achieve either of the above two
options, accept return of the CyberCall Product at Atio USA's expense and refund
that portion of the license fees based on a five (5) year straight-line
amortization. The provisions of this paragraph shall apply notwithstanding and
unlimited by any other provision(s) in this Agreement and shall survive this
Agreement.
18. NOTICES
18.1 Any notice hereunder shall be deemed given when personally
delivered in writing, when dispatched via overnight courier or when mailed as
described below and shall be deemed received when personally delivered in
writing or twenty four (24) hours after being sent via overnight express
courier, properly addressed to the party to whom it is intended at the address
set forth below or at such other address of which notice is given in accordance
herewith:
If to Atio USA: Atio Corporation USA, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇, Street and Deinard
Suite 2300
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
If to DISTRIBUTOR: ATIO Corporation International, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.C.
19. TERM
19.1 Term. This Agreement is effective as of the date first above
written and shall continue in force and effect for an Initial Term of five (5)
years or until that earlier date on which the Technology License and Transfer
Agreement between the parties of even date herewith (the "Technology Agreement")
is terminated because the AtioCALL Product Rights (as such term is defined in
the Technology Agreement) have reverted to Atio in accordance with paragraph 5
of the Technology Agreement. This Agreement may be renewed for additional terms
upon the mutual agreement of the parties.
19.2 Licenses and Royalty Obligations. All Product Licenses granted to
end users pursuant to this Agreement, and all obligations of end users and Atio
USA thereunder, shall survive any termination of this Agreement.
19.3 Upon the termination of this agreement:
a. Except as permitted in paragraph 19.3(c), DISTRIBUTOR shall,
and shall require its Dealers to, cease to promote, market or advertise the
CyberCall Products;
b. All amounts due from either party to the other shall be
immediately due and payable;
c. DISTRIBUTOR and its Dealers may retain and continue to purchase
and distribute the CyberCall Products and related documentation as necessary to
fulfill contracts existing and bids outstanding on the effective date of
termination.
d. DISTRIBUTOR shall, and shall require its Dealers to, promptly
destroy all copies in their possession of the CyberCall Products, related
documentation and marketing materials, except for those things which the
DISTRIBUTOR and its Dealers are permitted to retain under section 19.3(c).
19.4 Termination of this Agreement shall not affect the rights of any
end user to which a license for use of the CyberCall Products is granted under
this Agreement.
19.5 Rights and Obligations Surviving Termination. The termination of
this Agreement for any reason shall not affect the rights and obligations of the
parties under sections 12-26 or any other obligation or liability which either
party has to the other under this Agreement and which, by its nature, would be
expected to survive termination. All causes of action accruing prior to the
termination of this Agreement shall similarly survive termination unless
otherwise barred by applicable statutes of limitations.
20. Relationship Of The Parties
20.1 Nothing in this Agreement shall be construed as creating any joint
venture, partnership or agency relationship between the parties for any purpose
whatsoever or as constituting either party as the legal representative of the
other, and neither party shall have the right or the authority to assume, create
or incur any liability or obligation of any kind, express or implied, against or
in the name of or on behalf of the other.
21. Force Majeure
21.1 Except as otherwise specifically provided in this Agreement,
neither Atio USA nor DISTRIBUTOR shall be liable for any delay or failure in
performing any obligation under this Agreement due to any cause beyond its
reasonable control.
22. Non-Waiver
22.1 The failure by either party at any time to enforce any of the
provisions of this Agreement or any right or remedy available hereunder or at
law or in equity, or to exercise any option herein provided, shall not
constitute a waiver of such provision, right, remedy or option or in any way
affect the validity of this Agreement. The waiver of any default by either party
shall not be deemed a continuing waiver, but shall apply solely to the instance
to which such waiver is directed.
23. Assignment and Binding Effect
23.1 Assignment. Neither Atio USA nor DISTRIBUTOR may assign, delegate,
or otherwise transfer this Agreement or any of its rights or obligations
hereunder without the prior written consent of the other, which consent shall
not be unreasonably withheld, except that either party may without such consent
assign this Agreement in its entirety to a successor pursuant to a corporate
reorganization, merger, or sale of substantially all of that party's assets.
23.2 Binding Effect and Benefit. This Agreement shall be binding upon
and inure to the benefit of Atio USA and DISTRIBUTOR and their respective
successors and permitted assigns.
24. Confidentiality Of Agreement
24.1 Each of the parties will treat the terms and conditions of this
Agreement as confidential, and neither of the parties will disclose any of the
terms or conditions hereof to any
other person or party except as necessary to protect or enforce its rights
hereunder or as may be reasonably necessary for financial or regulatory
reporting purposes as required by law or pursuant to compulsory process.
25. Export Control and Legal Compliance.
25.1 Registration. If any approval with respect to this Agreement, or
the registration thereof, shall be required at any time during the term of this
Agreement, with respect to giving legal effect to this Agreement in the
Territory, or with respect to compliance with exchange regulations or other
requirements so as to assure the right of remittance abroad of United States
dollars pursuant to Section 10 hereof, DISTRIBUTOR shall immediately take
whatever steps may be necessary in this respect, and any charges incurred in
connection therewith shall be for the account of DISTRIBUTOR. DISTRIBUTOR shall
keep Atio USA currently informed of its efforts in this connection. Atio USA
shall be under no obligation to ship CyberCall Products to DISTRIBUTOR hereunder
until DISTRIBUTOR has provided Atio USA with satisfactory evidence that such
approval or registration is not required or that it has been obtained.
25.2 Export Compliance. Atio USA and DISTRIBUTOR shall comply with all
applicable laws including, without limitation, the export control law of the
United States of America and prevailing regulations which may be issued from
time to time by the United States Department of Commerce, the Office of
Munitions Control, the United States Department of State, and any other export
control regulations of the United States of America and those countries involved
in transactions concerning the exporting, importing, and reexporting of
CyberCall Products purchased or licensed in accordance with this Agreement.
DISTRIBUTOR shall also comply with the United States Foreign Corrupt Practices
Act and shall indemnify Atio
USA from any failure to comply or violation of such act by DISTRIBUTOR. The
provisions of this section shall survive any termination of this Agreement.
25.3 Export Licensing. Atio USA hereby agrees that it shall obtain any
necessary export license or other such similar necessary documentation prior to
exportation of any products or technical data acquired by DISTRIBUTOR from Atio
USA under this Agreement. DISTRIBUTOR shall not sell, export, reexport,
transfer, divert, or otherwise dispose of any such product or technical data,
directly or indirectly, to any person or firm, or country or countries
prohibited by the laws or regulations of the United States of America, or by the
laws of DISTRIBUTOR's country. Further, DISTRIBUTOR shall notify any person
obtaining such products or technical data from DISTRIBUTOR of the need to comply
with such laws and regulations.
25.4 Software Registration. With regard to Software provided under this
Agreement, DISTRIBUTOR agrees to comply with any import regulations and
registration requirements applicable in the country in which such Software is
distributed by DISTRIBUTOR.
26. Choice of Law, Construction, and Dispute Resolution.
a. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the United States of America and the state of New
York applicable to contracts made and to be performed therein. The parties
hereby agree to exclude the application of the United Nations Convention on
Contracts for the International Sale of Goods. Every provision of this Agreement
shall be construed, to the extent possible, so as to be valid and enforceable.
If any provision of this Agreement so construed is determined to be invalid,
illegal, or otherwise unenforceable, such provision shall be deemed severed from
this Agreement, and all other provisions shall remain in full force and effect.
b. Arbitration; Legal Proceedings.
i. The parties shall attempt in good faith to resolve any dispute
arising out of or relating in any manner to this Agreement, the breach,
termination or validity thereof or the transactions contemplated herein
(including, without limitation, any claim for indemnification pursuant to
section 17 hereof and any statutory or common law claim) promptly by negotiation
between a representative of the DISTRIBUTOR and a representative of Atio USA,
each of whom has authority to settle the controversy. Either Atio USA or
DISTRIBUTOR may give the other written notice that a dispute exists (a "Notice
of Dispute"). The Notice of Dispute shall include a statement of such party's
position and the name and title of the representative who will represent such
party. Within ten (10) days of the delivery of the Notice of Dispute, the
parties' respective representatives shall meet at a mutually acceptable time and
place, and thereafter as long as they reasonably deem necessary, to attempt to
resolve the dispute. All documents and other information or data on which each
party relies concerning the dispute shall be furnished or made available on
reasonable terms to the other party at or before the first meeting of the
parties as provided by this paragraph.
ii. Any controversy or claim arising out of or relating to this
Agreement, the breach, termination or validity thereof, or the transactions
contemplated herein (including, without limitation, any claims for
indemnification pursuant to section 17 hereof and any statutory or common law
claim), if not settled by negotiation as provided in paragraph (a) of this
section 25(b), shall be settled by arbitration in New York, New York, in
accordance with the CPR Rules for Non-Administered Arbitration of Business
Disputes, by three arbitrators. Either party may initiate arbitration twenty
(20) days following the delivery of a Notice of Dispute if the dispute has not
then been settled by negotiation, or sooner if the other party fails to
participate in negotiation in accordance with paragraph (i) above. The three
arbitrators shall be appointed as provided by CPR Rule 5, Selection of
Arbitrators by the parties. The arbitrators shall have no power to add or
detract from the agreements of the parties and shall not have the authority to
make any ruling or award that does not conform to the terms and conditions of
this Agreement or the applicable law. Without limitation of the foregoing, the
arbitrators shall have no power to terminate this Agreement other than in
accordance with its terms and shall have no power to grant any license not
expressly granted by this Agreement. The arbitrators shall have no authority to
award punitive damages. The arbitration procedure shall be governed by the
United States Arbitration Act, 9 U.S.C. ss. 1-16, and the award rendered by the
arbitrator shall be final and binding on the parties and may be entered in any
court having jurisdiction thereof.
iii. Each party shall have discovery rights as provided by the
United States Federal Rules of Civil Procedure; provided, however, that all such
discovery shall be commenced and concluded within sixty (60) days of the
initiation of arbitration.
iv. It is the intent of the parties that any arbitration shall be
concluded as quickly as reasonably practicable. Unless the parities otherwise
agree, once commenced, the hearing on the disputed matters shall be held four
days a week until concluded, with each hearing date to begin at 9:00 a.m. and to
conclude at 5:00 p.m. The arbitrators shall use all reasonable efforts to issue
the final award or awards within a period of five business days after closure of
the proceedings. Failure of the arbitrators to meet the time limits of this
paragraph (iv) shall not be a basis for challenging the award.
v. The arbitrators shall instruct the non-prevailing party to pay
all costs of the proceedings, including the fees and expenses of the arbitrators
and the reasonable attorneys' fees and expenses of the prevailing party. If the
arbitrators determine that there is not a
prevailing party, each party shall be instructed to bear its own costs and to
pay one-half of the fees and expenses of the arbitrators.
vi. Each party hereto hereby agrees that any legal proceeding
instituted to enforce an arbitration award hereunder will be brought in the U.S.
federal courts situated in New York (which shall have sole and exclusive
jurisdiction thereof), and hereby submits to personal jurisdiction therein and
irrevocably waives any objection as to venue therein, and further agrees not to
plead or claim in any such court that any such proceeding has been brought in an
inconvenient forum. Atio USA hereby designates, appoints and empowers ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, presently having offices at ▇▇▇▇▇▇▇, Street and Deinard, Suite 2300,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as Atio USA's true and
lawful agent for service of process to receive and accept on its behalf service
of process in any such proceeding brought in any such courts. DISTRIBUTOR hereby
designates, appoints and empowers ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.C., presently having
offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, as DISTRIBUTOR's true and
lawful agent for service of process to receive and accept on DISTRIBUTOR's
behalf service of process in any such proceeding brought in any such courts.
Each of the foregoing parties agrees that the failure of the process agent
appointed by such person to give notice of process to such person shall not
impair or affect the validity of service upon such agent or of any judgment
based thereon, and each such person irrevocably consents to the service of
process in any such proceeding by the mailing of copies thereof by certified
mail, postage prepaid, to such person's address for notice under this Agreement.
Nothing herein shall preclude any of the parties hereto from serving process in
any other manner or in any other jurisdiction in connection with enforcing an
arbitration award hereunder.
27. Integration
27.1 This Agreement (and the portions of the Technology Agreement
referenced in this Agreement) sets forth the entire agreement and understanding
between Atio USA and DISTRIBUTOR regarding the subject matter hereof and
supersedes any prior representations, statements, proposals, negotiations,
discussions, understandings, or agreements regarding the same subject matter.
This Agreement may not be modified or amended except by a writing signed by the
party against whom the modification or amendment is sought to be enforced.
28. Escrow
28.1 Upon transfer of the AtioCALL Products Rights to AtioUSA pursuant
to the Technology Agreement, the parties shall enter into an independent escrow
arrangement that provides, among other things, for the release of the source
code to the CyberCall Product to DISTRIBUTOR in the event that Atio USA either
(i) is unable or unwilling to timely support or maintain the CyberCall Products,
(ii) is no longer in the business contemplated by this Agreement, (iii) ceases
to exist in its present corporate form, or (iv) files or has filed against it a
petition of bankruptcy (and such petition is not discharged within ninety (90)
days of date of filing), or is adjudicated bankrupt, or otherwise becomes
subject to any proceeding under applicable bankruptcy or insolvency laws which
would not permit Atio USA to meet its obligations under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
VENTURIAN SOFTWARE ENTERPRISES, INC. ATIO CORPORATION
INTERNATIONAL, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Its President Its /s/ Chairman
SCHEDULE I
THE CYBERCALL PRODUCTS
1. CyberCall Products
SCHEDULE II
CYBERCALL PRODUCT PRICES
Discounts: Atio International will receive a 90% discount from the then current
Manufacturer's suggested Retail Price for Cybercall ( "MSRP") on sales in Africa
and an 80% discount from MSRP on all sales other than those made in Africa. In
order to meet the demands of a particular market or country the parties may
agree to mutually to establish different pricing or discounts.
Atio USA Annual Maintenance Fee
Atio USA's suggested end user fee for annual maintenance agreements
with respect to the CyberCall Products will be mutually agreed to by the parties
but no less than ten percent (10%) of the Atio USA suggested end user price of
the CyberCall Product in effect at the commencement of the annual maintenance
period. An end user customer who failed to purchase an annual maintenance
agreement for the CyberCall products commencing upon the expiration of the
manufacturer's warranty or who has failed to renew annual maintenance may not
thereafter purchase an annual maintenance agreement without first paying to Atio
USA the amount of maintenance fees such customer would have paid if it had kept
its annual maintenance agreement in effect continuously.
Nothing in this Schedule shall in any way govern the prices to be charged by the
Distributor, its Dealers, or any other party for sales of the Software, Software
Maintenance Agreements or related services, all such resellers being free to
determine the prices at which they will sell such products and services.
SCHEDULE III
CYBERCALL
SOFTWARE LICENSE AGREEMENT
1. Grant of License. Atio Corporation USA, Inc. ("Atio USA") hereby
grants to Licensee a non-exclusive, non-transferable and non-assignable license
to use the CyberCall computer software and associated user documentation which
accompany this Agreement (all referred to herein as the "Licensed Software") in
accordance with the terms and conditions of this Agreement.
2. Scope of Permitted Use. Throughout the term of this License
Agreement, Licensee shall have the right to use the Licensed Software for
Licensee's own business purposes for the number of seats for which a license fee
is paid. Licensee may make only such copies of the Licensed Software as are
reasonably necessary for Licensee's own use and archival or backup purposes.
3. WARRANTY DISCLAIMER. THE LICENSED SOFTWARE IS FURNISHED BY ATIO USA
AND DISTRIBUTOR AND ACCEPTED BY LICENSEE "AS IS," WITHOUT ANY WARRANTY
WHATSOEVER. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF
TITLE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY
EXCLUDED AND DISCLAIMED. NEITHER ATIO USA NOR DISTRIBUTOR DOES NOT WARRANT THAT
THE LICENSED SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF
THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, AS BETWEEN ATIO USA
AND DISTRIBUTOR AND LICENSEE, THE ENTIRE RISK AS TO THE SELECTION, QUALITY AND
PERFORMANCE OF THE LICENSED SOFTWARE IS WITH LICENSEE.
4. LIMITATION OF LIABILITY. IN NO EVENT WILL ATIO USA OR DISTRIBUTOR BE
LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, LOST
DATA, OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE FURNISHED OR TO BE
FURNISHED BY ATIO USA OR DISTRIBUTOR UNDER THIS AGREEMENT OR THE USE THEREOF,
EVEN IF EITHER ATIO USA OR DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH LOSS OR DAMAGE, AND THE AGGREGATE LIABILITY OF ATIO USA AND DISTRIBUTOR
UPON ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY ATIO USA AND DISTRIBUTOR
UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE AMOUNT PAID
TO ATIO USA OR DISTRIBUTOR UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT NOTHING
IN THIS AGREEMENT SHALL OPERATE TO RELIEVE ATIO USA OR DISTRIBUTOR
FROM LIABILITY FOR ITS OWN WILLFUL OR WANTON RECKLESSNESS OR INTENTIONAL TORTS.
5. Proprietary Expression and Information. Atio USA or its licensor
claims copyright ownership of the Licensed Software, and that the ideas,
procedures, processes, systems, methods of operation, and concepts embodied
within the Licensed Software are trade secret information of Atio USA or its
licensor. This license is not a sale of a copy of the Licensed Software and does
not render Licensee the owner of a copy of the Licensed Software. Ownership of
the Licensed Software and all components and copies thereof shall at all times
remain with Atio USA or its licensor, regardless of who may be deemed the owner
of the tangible media in or on which the Licensed Software may be copied,
encoded or otherwise fixed.
6. Restrictions Upon Duplication, Reverse Engineering and Disclosure.
Any copy of the Licensed Software made by Licensee must bear the same copyright
and other proprietary notices that appear on the copy furnished to Licensee by
Atio USA. Except to the extent such a restriction is preempted by applicable
law, Licensee will not attempt to "reverse engineer" the Licensed Software, nor
shall Licensee permit any other person to do so. Licensee will make reasonable
efforts to prevent any unauthorized copying of the Licensed Software or
disclosure or use of Atio USA's or Atio USA's licensor's trade secret
information, and Licensee will advise its employees who are permitted access to
the Licensed Software of the restrictions upon duplication, reverse engineering,
disclosure and use contained in this Agreement. Licensee will be liable for any
unauthorized copying, reverse engineering and/or disclosure by its employees or
agents.
7. Restriction upon Transfer. Licensee will not lease, rent, sell,
pledge, assign, sublicense, loan or otherwise transfer to any third party any
part of the Licensed Software or any copy thereof or any of Licensee's rights
under this Agreement without the prior written consent of Atio USA.
8. Termination. The license hereby granted will terminate automatically
and immediately in the event that: a) Licensee violates any of the provisions of
paragraphs 2, 6 or 7 above. In the event of termination, Licensee will, within
fifteen (15) days, either return all copies of the Licensed Software to Atio USA
or destroy the same and certify to Atio USA in writing that all copies not
returned to Atio USA have been destroyed.
9. Non-Waiver. The failure by either party at any time to enforce any
of the provisions of this Agreement or any right or remedy available hereunder
or at law or in equity, or to exercise any option herein provided, shall not
constitute a waiver of such provision, right, remedy or option or in any way
affect the validity of this Agreement. The waiver of any default by either party
shall not be deemed a continuing waiver, but shall apply solely to the instance
to which such waiver is directed.
10. Severability and Choice of Law. Every provision of this Agreement
shall be construed, to the extent possible, so as to be valid and enforceable.
If any provision of this Agreement so construed is held by a court of competent
jurisdiction to be invalid, illegal or
otherwise unenforceable, such provision shall be deemed severed from this
Agreement, and all other provisions shall remain in full force and effect. This
Agreement shall in all respects be governed by and interpreted, construed and
enforced in accordance with the laws of the United States of America and the
state of Minnesota. Any action between Atio USA and Distributor and Licensee
will be venued in a state or federal court situated within the state of
Minnesota, and Licensee irrevocably submits itself to the personal jurisdiction
of such courts for such purpose.
11. Assignment and Binding Effect. Atio USA may assign, delegate and/or
otherwise transfer this Agreement or its rights and obligations hereunder to any
person or entity which purchases or otherwise succeeds to the business of Atio
USA to which this Agreement pertains. Licensee may not assign, delegate or
otherwise transfer this Agreement or any of its rights or obligations hereunder
without the prior written consent of Atio USA. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
permitted assigns.
12. Entire Agreement. This Agreement sets forth the entire agreement
and understanding between Atio USA and Licensee regarding the subject matter
hereof and supersedes any prior representations, advertisements, statements,
proposals, negotiations, discussions, understandings, or agreements regarding
the same subject matter. This Agreement may not be modified or amended except by
a writing signed by the party against whom the same is sought to be enforced.
Atio Corporation USA, Inc. ______________________________________
(Licensee)
Number of Concurrent Seats ______ By ___________________________________
Its __________________________________
Date _________________________________
SCHEDULE IV
PARTIES AUTHORIZED BY ATIO INT. TO ENGAGE IN
SPECIFIED ACTIVITIES OUTSIDE OR WITHIN THE TERRITORY
Atio Corporation Europe
Atio Corporation Asia Pacific
Atio Corporation Pty
Atio Corporation Hong Kong
