EXHIBIT 10.11
SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
THIS SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT (this
"Agreement") is effective as of this ______ day of ___________, 2003 by and
between ___________________________, a ________________ limited liability
company ("NEXVU") and __________________________ ("RESELLER").
RECITALS
A. RESELLER is a Value Added Reseller specializing in
______________________.
B. NEXVU. has developed a solution that monitors, evaluates, and
recommends ways to improve the performance of computer based business
applications and the productivity of those who use these applications.
C. RESELLER believes that the solutions that NEXVU offers would enhance
the experience of its customers and desires to offer NEXVU products to the end
users through its marketing and sales force.
D. NEXVU desires to increase the number of users of the NEXVU product
and believes that granting RESELLER certain rights to promote, market and sell
NEXVU product within its network of customers will add a substantial number of
users to NEXVU's current customer base.
NOW, THEREFORE, for and in consideration of the foregoing, and the
mutual promises, covenants and considerations contained herein, the parties
hereto agree as follows:
1. Use and Distribution Rights. Subject to the terms and conditions
contained herein, NEXVU hereby grants to RESELLER, a non exclusive, non
transferable limited license and right to market, promote, and sell NEXVU
Product only to the end users. In furtherance thereof, NEXVU hereby grants to
RESELLER a non exclusive, non transferable license to use the NEXVU Product, in
object code format, for marketing, promotional, demonstration, and support
purposes.
2. RESELLER Revenue Attainment Goals. In return for NEXVU authorizing
RESELLER to purchase at a discount, market, promote and sell NEXVU product to
RESELLER end users, RESELLER agrees to meet certain revenue objectives. Unless
specifically identified in Exhibit A, all revenue objectives articulated in this
document refer to net revenue to NEXVU. Hardware revenues generated from the
sale of NEXVU appliances are not calculated when establishing RESELLER revenue
attainment.
3. End user Use of NEXVU Product. In connection with the sale and
distribution of the NEXVU Product to an end user, RESELLER shall require each
end user to enter into an end user license agreement (whether in "shrink wrap",
"click wrap" or other form) prior to using the NEXVU Product. RESELLER shall not
make any agreement, statement or take any other action
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in connection with a sale of a NEXVU Product that purports to expand, limit or
otherwise change any of NEXVU's product warranties, available remedies,
disclaimers and limitations of product liability as set forth herein or in
NEXVU's standard end user license agreement.
4. Restrictions on Use and Distribution Rights.
(a) RESELLER may not in any way sell, lease, rent, license,
transfer, transmit, sublicense or otherwise distribute the NEXVU
Product or any part thereof or the right to use the NEXVU Product or
any part thereof to any person or entity other than an end user.
(b) RESELLER shall not nor permit any employee or agent to
disassemble, decompile, decrypt or otherwise reverse engineer the NEXVU
Product, or in any way attempt to learn the source code, structure,
algorithms or ideas underlying the NEXVU Product.
(c) RESELLER shall not customize, modify, enhance or otherwise
change the NEXVU Product, or create derivative works based upon the
NEXVU Product, except as authorized by NEXVU in writing.
(d) RESELLER shall not use, copy or distribute (in whole or in
part) the NEXVU Product or make the NEXVU Product available to
unauthorized third parties.
(e) Any right or license not expressly granted to RESELLER is
reserved to NEXVU. Except as expressly set forth herein, no express or
implied license is granted to RESELLER to use, receive, reproduce,
copy, market sell, distribute, license, sublicense, lease, timeshare,
or rent the NEXVU Product or any part thereof.
(f) RESELLER shall not purchase, use, copy or distribute NEXVU
product from any source other than a NEXVU authorized Distributor or
NEXVU directly. In addition, RESELLER must be approved by a NEXVU
authorized Distributor in order to sell NEXVU product to an End-User.
5. RESELLER's Marketing and Customer Support Activities.
(a) RESELLER shall use its reasonable best effort to promote
and sell the NEXVU Product to the end users. RESELLER shall create and
distribute to its customer base promotional material and advertisements
regarding the NEXVU Product.
(b) Within thirty (30) days of the date hereof, RESELLER shall
submit to NEXVU a marketing plan for the sale of the NEXVU Product to
RESELLER's customer base for NEXVU's approval. RESELLER's shall make
such changes to the marketing plan as NEXVU may reasonable request.
(c) RESELLER shall submit to NEXVU, at least ten (10) days
prior to the first proposed use thereof, a copy of all advertising and
promotional materials for the
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NEXVU Product, and all other material proposed to be used in the offer
or sale of the NEXVU Product (including any images, pictures or other
content posted on RESELLER's Website). RESELLER must obtain NEXVU's
written consent to use such advertising, material and content (which
consent shall not be unreasonably withheld or delayed) and may not
revise or amend such materials or content without prior written
approval of NEXVU except to the extent any such revision or amendment
does not materially change such materials or content and does not alter
the portrayal or use of any of the NEXVU's trademarks.
(d) RESELLER shall make no representations, warranties or
claims regarding the NEXVU Product which are false, misleading or
inconsistent with the representations, warranties or descriptions
provided by NEXVU. RESELLER shall not make any agreement, statement or
take any other action in connection with a sale of a NEXVU Product that
purports to expand, limit or otherwise change any of NEXVU's product
warranties, available remedies, disclaimers and limitations of product
liability as set forth herein or in NEXVU's standard end user license
agreement.
(e) RESELLER shall not be required to provide service and
support to the end users, including telephone and web based support to
end users.
(f) In performing its obligations under this Agreement,
RESELLER shall at all times comply with the provisions of applicable
federal, state and local laws and regulations.
6. Co Branding. NEXVU hereby grants RESELLER the right to co brand the
NEXVU Product in connection with offering them to the end users. Co branding
shall mean the use of the product name that RESELLER and NEXVU mutually agree
upon to remarket the NEXVU Product to the end users, followed by the use of
NEXVU's name in a phrase such as "Powered by NEXVU". The parties shall mutually
agree on the language, marks, names, logos and other matters concerning the co
branding of the NEXVU Product.
Press Releases. Neither of the parties shall, without the prior approval of the
other, make any press release or other public announcement concerning the
transactions contemplated by this Agreement.
RESELLER agrees to participate in NEXVU public relations initiatives, including
news releases, media interviews, and/or trade show appearances. RESELLER also
agrees to allow NEXVU to use its name as a customer reference in news releases,
Web site materials, and in press interviews.
7. Fees and Payment.
(a) RESELLER agrees to pay its NEXVU Authorized Distributor
for Product(s) sold by RESELLER to Distributor net thirty (30) days.
Distributor shall have no obligation to ship Products where any amount
of RESELLER obligation to Distributor is past due or where RESELLER is
otherwise in default of any of its obligations to
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Distributor or NEXVU hereunder in any material respect. Distributor
shall have no liability to RESELLER for failure to supply any Product
for lack of payment.
(b) In connection with the sale of the NEXVU Product to an end
user, RESELLER shall cause the end user to pay the agreed upon price
directly to RESELLER. RESELLER also agrees to pay NEXVU or the NEXVU
authorized distributor for the product at the agreed upon
pricing/discount schedule set forth and stated in Exhibit A.
8. Protection of Proprietary Information.
(a) NEXVU retains all right, title and interest in and to the
NEXVU Product, and any patent, copyright, trade secret, trademark,
service xxxx or other intellectual property or proprietary rights in
the NEXVU Product (the "NEXVU Property"). NEXVU grants only those
rights and licenses expressly provided for in this Agreement and does
not thereby transfer any title or ownership interest in the NEXVU
Property. Except as agreed by NEXVU in connection with the co branding
as contemplated by Section 5, RESELLER shall not remove or alter, or
cause or allow to be removed or altered, any trademark, trade name,
service xxxx, copyright notice or other proprietary rights notice or
legend appearing in or on any of the NEXVU Property. RESELLER shall not
register or attempt to register any of NEXVU's trademarks, service
marks, logos, domain names or brands, or substantially or confusingly
similar trademarks, logos, domain names or brands, anywhere in the
world.
(b) RESELLER recognizes the validity of NEXVU's trademarks and
trade names (collectively, the "Trademarks") and acknowledges that such
Trademarks are the sole property of NEXVU. Except for the limited
rights set forth in Section 4(c), RESELLER is not being granted or
conveyed any license or proprietary rights in such Trademarks
hereunder, and shall not infringe upon, dilute or harm NEXVU's rights
in its Trademarks. RESELLER shall not use any Trademarks in connection
with the sale, marketing and promotion of the NEXVU Products other than
those used by NEXVU or its supplier or authorized by NEXVU in writing.
RESELLER shall not use the Trademarks in any manner without submitting
such proposed use to NEXVU and obtaining prior written approval thereof
from NEXVU (which consent shall not be unreasonably withheld or
delayed).
(c) Upon any termination of the Agreement, RESELLER agrees to
discontinue immediately all use of the Trademarks and to destroy or
deliver to NEXVU (at NEXVU's election) all advertisements, brochures,
displays, designs, posters, and, other promotional materials in
RESELLER possession or control that contain any such Trademark or that
refer to the NEXVU Product.
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9. Mutual Confidentiality
(a) Each party acknowledges that both NEXVU and RESELLER offer
commercially valuable products respectively, and the design and
development of which reflects the effort of skilled experts, the
investment of considerable time and money and that the loss of
competitive advantage due to unauthorized disclosure or unauthorized
use of any Trade Secrets (as defined herein) and other Confidential
Information (as defined herein) relating thereto is significant.
Accordingly, each party covenants and agrees that it shall not, without
the prior written consent of the other or as set forth herein, directly
or indirect, disclose, in whole or in part, any Trade Secrets or
Confidential Information of the other to any individual, entity or
other third person. The restrictions set forth herein shall continue
(i) with respect to the Trade Secrets and any Confidential Information
which arises to the level of a Trade Secret, for as long as such
information continues to be a Trade Secret under applicable law, and
(ii) with respect to all other Confidential Information, for a period
of three (3) years after the date of expiration or termination of this
Agreement.
(b) Neither party shall have any obligation to preserve the
confidentiality of the Trade Secrets or Confidential Information of the
other to the extent it is information which: (i) was previously known
to the other free of any obligation to keep it confidential; (ii) is or
becomes publicly available by other than unauthorized disclosure; or
(iii) is lawfully received from a third party whose disclosure does not
violate any confidentiality obligation.
(c) "Confidential Information" means any data or information
that is provided or obtained from one party hereunder to the other
party, and that is valuable to the disclosing party or its owner and
not generally known by the public. "Trade Secrets" means any
information provided or obtained from one party hereunder to the other
party which: (i) derives economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from its
disclosure or use; and (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
10. Disclaimer of Warranties. NEXVU MAKES NO REPRESENTATION, WARRANTY
OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH,
AVAILABILITY, ACCURACY OR COMPLETENESS OF THE NEXVU PRODUCT OR ANY CONTENT
CONTAINED THEREIN. NEXVU DOES NOT REPRESENT OR WARRANT THAT: (I) THE USE OF THE
NEXVU PRODUCT WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR FREE OR OPERATE IN
COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (II) THE NEXVU
PRODUCT WILL MEET RESELLER' REQUIREMENTS OR EXPECTATIONS, (III) ERRORS OR
DEFECTS WILL BE CORRECTED OR (IV) THE SOFTWARE PROGRAM OR THE SERVER(S) THAT
MAKE THE DATA FEED SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL
COMPONENTS. THE NEXVU PRODUCT AND ALL CONTENT CONTAINED THEREIN IS PROVIDED TO
YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND
WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
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INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY
DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY NEXVU.
11. Limitation of Liability.
(a) RESELLER agrees that neither NEXVU nor any of its
distributors shall have any liability to RESELLER, whatsoever, for any
damage, expense or loss of any kind, under any theory of liability or
indemnity, in connection with or arising from:
(i) Any decision made or action or non action taken
by such person in reliance upon the NEXVU Product.
(ii) service interruptions;
(iii) delays or errors;
(iv) unavailability or inaccuracy of any content or
information from the NEXVU Product;
(v) computer viruses, hacker intrusion or other
digital hazards;
(vi) any circumstances beyond the reasonable control
of NEXVU.
(b) In no event shall NEXVU or its distributors be liable to
RESELLER for any indirect, special, incidental, consequential or
punitive damages (including without limitation, loss of profits, loss
of data, loss of goodwill, work stoppage, computer failure or
malfunction, or interruption of business), regardless of whether NEXVU
or any of its service providers have been advised of the possibility of
such damages.
(c) The total liability of NEXVU or any of its distributors
for any liability, losses, expenses or damages hereunder or in
connection with RESELLER or the end user's use of the NEXVU Product,
under any circumstances whatsoever, shall not exceed the purchase price
by RESELLER to NEXVU for any part of the NEXVU Product during the
twelve (12) months preceding the claim for such liability, loss,
expense or damage. In no event shall NEXVU or any of its distributors
be liable to RESELLER for any losses or damages other than the amount
referred to above. To the extent any of the limitations of liability
provided in this section are restricted by applicable law in certain
jurisdictions, such limitations of liability shall not apply in such
jurisdictions to the extent of such restrictions.
12. Term and Termination
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(a) Term. The term of this Agreement shall be one year from
the date hereof, and shall automatically renew for successive one year
periods unless terminated by either party upon thirty days prior
written notice to the end of the then current term.
(b) Early Termination. Without prejudice to any other
remedies, either party shall have the right at any time by giving
notice to the other to terminate the Agreement forthwith in any of the
following events:
(i) If the other party commits a material breach of
any of the terms or conditions of this Agreement and fails to
cure such breach within sixty (60) days after delivery of
notice thereof; or
(ii) If the other party becomes insolvent, makes a
general assignment for the benefit of creditors, suffers or
permits an appointment of a receiver for its business or
assets, becomes subject to any proceedings under any
bankruptcy or insolvency law, whether domestic or foreign, and
in the case of any involuntary proceeding, such proceeding is
not dismissed within sixty (60) days from the filing thereof,
or is liquidated, voluntarily or otherwise.
(c) Post Termination Obligation. Upon termination or
expiration of this Agreement for any reason: (i) all rights and
licenses granted to RESELLER for resell will immediately cease; (ii)
RESELLER shall return, or certify the destruction or removal of, all
copies of the NEXVU Product in its possession (whether modified or
unmodified); and (iii) all invoices and any other monies due to NEXVU
by RESELLER shall remain due and payable in accordance with the terms
hereof.
(d) Survival of Terms. Upon termination or expiration of this
Agreement, and in addition to any provisions that expressly provide to
survive any termination of this Agreement, the provisions of Sections
8, 9, 10, 11, 12 and 13 shall continue and survive in full force and
effect.
13. General Provisions.
(a) Assignment. No portion of this Agreement may be assigned
or transferred by RESELLER without the prior written consent of NEXVU,
which consent shall not be unreasonably denied, and any attempt to do
so without consent shall be null and void.
(b) Equitable Remedies and Specific Performance. Each party
acknowledges that each provision in this Agreement providing for the
protection of the other party's intellectual property and related Trade
Secretes and Confidential Information is material to this Agreement.
Each party acknowledges that any threatened or actual breach of the
other party's proprietary rights or disclosure of the other's
Confidential Information shall constitute immediate, irreparable harm
to the non disclosing party, for which such party shall be entitled in
equitable remedies awarded by a court of competent jurisdiction.
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(c) Binding Agreement. This Agreement shall be binding upon
and inure to the benefit of the parties, their legal representatives,
permitted transferees, and their respective successors and assigns.
(d) Severability. Any provision of this Agreement held or
determined by a court (or other legal authority) of competent
jurisdiction to be illegal, invalid, or unenforceable in any
jurisdiction shall be deemed separate, distinct and independent, and
shall be ineffective to the extent of such holding or determination
without (i) invalidating the remaining provisions of this Agreement in
that jurisdiction or (ii) affecting the legality, validity or
enforceability of such provision in any other jurisdiction.
(e) Notices. All legal notices under this Agreement required
to be given hereunder shall be given in writing and shall be delivered
either by hand, by certified mail return receipt requested, or by
facsimile (with confirmation copy sent by certified mail) addressed to
the receiving party at the address set forth below, or at such other
address as may be designated from time to time.
(f) No Waiver. Any failure by either party to detect, protest,
or remedy any breach of this Agreement shall not constitute a waiver or
impairment of any such term or condition, or the right of such party at
any time to avail itself of such remedies as it may have for any breach
or breaches of such term or condition. A waiver may only occur pursuant
to the prior written express permission of an authorized officer of the
other party.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois without
giving effect to conflicts of law. In any civil action by either party
relating to this Agreement, the prevailing party shall recover from and
be reimbursed by the other party for all costs, reasonable attorneys'
fees, and related expenses.
(h) Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the subject
matter hereof, and is intended as the parties' final expression and
complete and exclusive statement of contemporaneous agreement,
representations, promises and understandings, whether written or oral,
and may be amended or modified only by an instrument in writing signed
by both parties.
(i) Relationship of Parties. The parties are independent
contractors and not agents of each other. Neither party will have, and
will not represent that it has, any authority to bind the other to any
obligation, express or implied, or to make any warranties or
representations on behalf of the other, except as expressly authorized
in this Agreement. Each party is solely responsible for its employees
and agents and its labor costs and expenses arising in connection
therewith.
(j) Basis of Bargain. Each party recognizes and agrees that
the warranty disclaimers and liability and remedy limitations in this
Agreement are materially bargained for bases of this Agreement and that
they have been taken into account and reflected in determining the
consideration to be given by each party under this
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Agreement. The disclaimers and limitations reflect the parties'
reasonable allocation of the risks associated with any performance or
non performance under this Agreement, and have been included in this
Agreement as a material inducement for NEXVU and RESELLER to enter into
this Agreement.
IN WITNESS WHEREOF, the parties have caused their duly authorized
officers to execute this Agreement as of the date the last party signs below.
NEXVU: RESELLER:
--------------------------------- --------------------------------------
[Full Name of Company] [Full Name of Company]
By: By:
------------------------------ -----------------------------------
Its: Its:
----------------------------- ----------------------------------
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EXHIBIT A
PRODUCT DESCRIPTION
LIST PRICE*
(TYPICAL) (SEE RESELLER
NEXVU CATALOG COST OF NEXVU
MODEL DESCRIPTION FOR PRICING) APPLIANCE
----- ----------- -------------- -------------
NEXVU 10/100/1000BT distributed agent appliance (2RU USD $________ $________
Appliance appliance) $_____ for license
$_____ for Appliance
computing platform
(non-discountable)
NEXVU $________
Command Manager Administrator appliance (1RU appliance) USD $________ $_____ for license
Center $_____ for Command
Center computing platform
(non-discountable)
Support Software maintenance support 85% of List Price of NEXVU
support maintenance.
NEXVU will offer RESELLER a pricing schedule for sale of NEXVU product to
RESELLER resellers or end users in the territory assigned to RESELLER in Exhibit
B as follows
RESELLER shall purchase NEXVU Appliances from an Authorized NEXVU Distributor.
RESELLER shall not attempt to integrate, manufacture, or create an appliance by
loading NEXVU software onto any appliance other than that which is authorized by
NEXVU. MERIDIAN shall pay Distributor the total dollar amount owed for the
appliance, which shall in turn pay NEXVU for the software portion of the
product.
RESELLER may purchase NEXVU Appliance licenses at a 30% discount rate from the
suggested list price of the software portion of the Appliance. RESELLER shall
purchase this license from an authorized NEXVU Distributor as part of the
complete NEXVU Appliance. RESELLER shall pay the Distributor for the complete
appliance minus the 30% discount from the license. RESELLER may then resell the
NEXVU Appliance at a price not to exceed the suggested list price advertised by
NEXVU. RESELLER may not sell NEXVU Appliances to an end user for less than the
discounted rate identified in Exhibit A of this contract without written consent
from an authorized NEXVU agent.
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RESELLER may purchase NEXVU Command Center licenses at a 30% discount rate from
the suggested list price of the software portion of the Appliance. RESELLER may
then resell the NEXVU Command Center at a price not to exceed the suggested list
price advertised by NEXVU. RESELLER shall purchase this license from an
authorized NEXVU Distributor as part of the complete NEXVU Command Center.
RESELLER shall pay the Distributor for the complete appliance minus the 30%
discount from the license. RESELLER may not sell NEXVU Command Centers to an end
user for less than the discounted rate identified in Exhibit A of this contract
without written consent from an authorized NEXVU agent.
RESELLER shall agree to sell an annual maintenance and support license for each
NEXVU Manager Appliance and each NEXVU Command Center Appliance that RESELLER
purchases regardless if this purchase is for internal use, or for an end user.
This maintenance fee will cover software releases and interim releases. It will
also cover front line technical support for RESELLER end users and customers
direct from NEXVU Technical support staff. This technical support will be based
upon an 8 to 5 (US Central time zone) model. This coverage will also include
email, voice mail, and other standard forms of communications for support and
maintenance of NEXVU products. NEXVU will offer this support license to RESELLER
at a 15% discount price from the suggested list price of the maintenance.
With regards to NEXVU offering RESELLER "Silver" level discount authorization
from NEXVU to RESELLER, RESELLER agrees to a revenue commitment of 1.5Million US
Dollars of NEXVU Software and support revenue. This one year/1.5 Million US
Dollar commitment will commence upon the signing of this agreement by an
authorized agent of NEXVU LLC. and RESELLER.
If RESELLER does not reach the one year 1.5 Million US Dollar commitment, Nexvu
may, at its option, change the discount authorization level as the sole remedy .
In the event that RESELLER achieves a NEXVU software/support revenue number of
1Million US Dollars within the first nine months of this agreement, then NEXVU
will extend an additional 5% discount to RESELLER on both NEXVU Appliance and
NEXVU Command Center and elevate the reseller status of RESELLER to Gold. From
time to time, NEXVU will offer special incentives or sales programs designed to
increase a distributor or resellers interest in selling NEXVU solutions. For the
duration of this contract, RESELLER will be eligible to participate in said
promotional activities in the territories assigned to RESELLER in Exhibit B
below.
* Represents such amount designated below or such greater amount posted
by Nexvu from time to time as its list price; pricing structure does
not include installation or consulting.
** No discount applies unless completed by Nexvu.
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EXHIBIT B
NEXVU TECHNOLOGIES, LLC. RESELLER AGREEMENT
Name of Reseller:
---------------------------------------------------------------
Territory for Distribution of Products: United States of America
----------------------------------------
Exclusivity:
1. NEXVU shall not compete directly with customers of RESELLER
for the NEXVU Products that RESELLER is authorized to resell
for the duration of this contract. This exclusivity clause
does NOT extend to other authorized NEXVU Resellers or
Distributors.
Notwithstanding the rights under section 13, the sole remedy for violation of
the terms of Exhibit B shall be the termination of this agreement in full in
accordance with the termination rights outlined in Section 3 of this agreement.
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