VIAQUO-SIVAULT STRATEGIC PARTNERING AND ASP LICENSE AGREEMENT
This Application Service Provider ("ASP") Agreement ("Agreement") is effective
----- -----------
(the "Effective Date"),by and between Viaquo Corporatiob ("Viaquo"), a Delaware
----------------- --------
corporation having its principal business 'office at 0000 Xxxxx Xxxxx Xxxxxx,
Xxxxx 000. Xxx Xxxx, XX 00000 and SiVault Analytics, ("SiVault"), a California
corporation having its principal business office at 0000 Xxxxxxx Xxxxx, Xxxxx
000, Xxx Xxxx, XX. 00000.
WHEREAS, Viaquo has developed and is continuing to develop a certain access
control and related software product collectively called ViaSeal;
WHEREAS, SiVault wishes to obtain, and Viaquo is willing to grant to SiVault,
the exclusive right to electronically host the ViaSeal software in the
healthcare-related field (as defined below);
NOW, TUEREFORE, in consideration of the mutual covenants and conditions set
forth below, Viaquo and SiVault agree as follows:
ARTICLE I-DEFINITIONS
"Authorized Server" means a computer server that is: (a) owned or leased by
-------------------
SiVault, or owned or leased by SiVault's End User organization (End User-run
Application Service Provider service) (b) dedicated exclusively to hosting the
Software Products licensed from Viaquo hereunder for access by End Users who
have purchased a Subscription therefor; and (c) having the P address specified
in an applicable Product Schedule.
"Confidential Information" has the meaning set forth in Section 12.2.
--------------------------
"Derivative Work" means, with respect to the subject thereof, any improvement,
------------------
modification, revision, translation, abridgment, compilation, or derivative
thereof.
"Documentation" means the user manuals, reference manuals, installation guides,
---------------
and other documentation, describing the Software Products, whether in hard copy
or electronic. form, as provided by Viaquo from time to time.
"End User" means a person or an organization that Subscribes to electronic
-----------
access to a Software Product hosted by SiVault, for use in the person's or
entity's business operations, excluding any redistribution, remarketing or
leasing to any other person or entity.
"End User Information" has the meaning set forth in Section 2.5.
----------------------
"End User License Agreement" means the agreement between Viaquo and an End User,
----------------------------
in the form set forth in Exhibit II, as may be amended from time to time by
----------
Viaquo.
"Error" means a Program Error or a Hosting Error.
-------
"Field of Use" means hosted ASP services provided by SiVault in its listed
----------------
competitive markets incorporating ViaSea1 for use in protecting
transactions-based data in primarily in the health care industry, typically
pharmaceutical and medical services and related transactions.
"Gross Revenues" means the all revenues received by SiVault from Subscription
-----------------
fees and other forms of business (if any) related to the ASP service, less any
refunds due to proper cancellations or terminations by End Users.
"High Risk Activities" has the meaning set forth in Section 7.4.
----------------------
E-28
"Hosting Error" means: (a) a failure of the Software Product to function
----------------
properly, which would not have occurred but for improper installation, lack of
necessary maintenance, use in an environment other than that for which it was
designed, insufficient processor! disk /bandwidth capacity, use in connection
with unauthorized software or hardware; or (b) any ether failure not directly
attributable to improper design or coding of the Software Product by Viaquo,
exclusive of Program Errors.
"License Key" means an electronic key (if an) necessary to install and operate a
--------------
particular Software Product on SiVaults computer system.
"Material Payment Noncompliance" has the meaning set forth in Section 5.4.
--------------------------------
"Product Schedule" means the schedule attached hereto as Exhibit I, pursuant to
-------------------
which Viaquo authorized SiVault to host Software Product(s) for End Users.
"Program Error" means a reproducible material deviation of a Software Product
----------------
from the applicable specifications therefor, or any other failure of the
Software Product to function properly when used under the conditions for which
it was designed, exclusive of Hosting Errors.
"Prohibited Acts" has the meaning set forth in Section 1 0.4.
------------------
"RMA" means "return merchandise authorization."
----
"Software Product(s)" means the Viaquo ViaSeal software product(s) as specified
----------------------
in a relevant Product Schedule (see Exhibit I), in object code form, together
with any applicable End User Documentation, Software Product does not in any
event include source code.
"Subscribe" means to have a Subscription.
-----------
"Subscription" means a contractual arrangement between SiVault and an End User,
--------------
for access to a Software Product hosted by Sivault.
"Update" means software code released by Viaquo to implement bug fixes or
--------
patches, maintenance releases, or other minor improvements, to a Software
Product. Any software code containing new functionality or substantial
improvements in performance may be designated by Viaquo in its discretion as a
new Software Product or an Upgrade, rather than an Update.
"Upgrade" means software code that Viaquo releases to implement substantial new
---------
functionality, exclusive of Updates.
"Viaquo Trademarks" means the trade names and trademarks "Viaquo" and "ViaSeal,"
-------------------
together with all other flames, brands logos, and marks adopted by Viaquo as a
trademark or service xxxx for use in connection with any of the Software
Products in the relevant Field of Use.
ARTICLE 2- HOSTINC LICENSE
2.1 Appointment as ASP. Viaquo hereby appoints SiVault, and SiVault hereby
-------------------
accepts appointment, as Viaquo'ss phcationservice rovider for Software Products
in the Field of Use. Viaquo grants to SiVault a personal, and exclusive license
to host the Software Products on Authorized Servers for access by End Users
holding Subscriptions En the Field of Use. SiVault may also grant a sublicense
to Si Vault's End User organizations wishing to run their own hosted service,
for the same application as SiVault runs. This sublicense shall not in any case
extend to providing service bureau or outsourcing operations for the benefit of'
End Users who are not personnel of the sublicensee organization.
2.2 Exclusivity Restrictions. Further provisions regarding the exclusivity are
--------------------------
set forth in the relevant Product Schedule. Viaquo reserves the right to appoint
other persons or entities as application service providers of Software Products
outside SiVault's exclusive area.
E-29
2.3 No Hosting of Competing Products. During the term of this Agreement, SiVault
---------------------------------
agrees that it shall not host, market, sell, license or otherwise distribute any
tile access control products (or components of products) that directly compete
with any of the Software Products. A Product Schedule may include a listing of
products deemed to directly compete with Software Products, and any such listing
shall be understood to be exemplary, rather than exclusive. For the avoidance of
doubt encryption and security products (e.g., PKI software firewalls, VPN
software, and security monitoring software) that that do not contain file access
control functionality shall not be deemed to be competing products.
2.4 No Source Code. Notwithstanding anything to the contrary in this Agreement
----------------
or a Product Schedule, the rights under this Agreement expressly exclude any
rights to the source code of any Software Product.
2.5 Prior to granting any End User with access (other then for bona fide
demonstration purposes) to the Software Product, SiVault shall: (a) complete an
End User License Agreement, obtaining an executed copy thereof from the End User
& promptly forward a copy thereof to Viaquo; and (b) collect the End User's
company name, contact name, address, telephone number, email address, facsimile
number, and IP address on which the Software Product is to be installed
(collectively, "End User Information"),and promptly provide such End User
--------------------
information to Viaquo. This information is required to check for compliance with
export control prohibitions.
2.6 Termination of Availability to Certain Countries. If Viaquo has reason to
---------------------------------------------------
believe that the local laws, regulations, treaties or enforcement policies of
any country will not adequately protect Viaquo's intellectual property in or
associated with the Software Products, Viaquo may so notify SiVault and upon
receipt of such notice SiVault will terminate any availability to Software
Products for such country.
2.7 Reservation of Rights. All rights not expressly granted to SiVault under
-----------------------
this Agreement are reserved to Viaquo. No rights other than those expressly
granted herein may arise through implication or estoppel. SiVault shall not
host, use, copy, market, or distribute Software Products for any purpose or in
any manner other than as expressly permitted by this Agreement.
2.8 No Outsourcing or Service Bureau Operations. The Software Product may be
-----------------------------------------------
hosted and accessed solely for the internal business purposes of End Users. In
no event shall SiVault: (a) solicit or accept orders from any End User who
intends to use the Software Product to operate a service bureau or outsourcing
operation; or (b) provide access to any Software Product for any End User which
Si Vault has reason to believe intends to use the Software Product to operate a
service bureau or outsourcing operation.
2.9 Prohibited End Uers. SiVault shall not sell a Subscription to any End User
---------------------
whom SiVault knows (or has reason to believe) intends to utilize any Software
Product: for: (a) sending bulk, unsolicited e-mail, unrelated to the End Users
own products or services, to recipients who have no past customer affiliation
with the End User, as a principal part of the End User's normal operations; (b)
knowingly propagating viruses, worms and the like; (c) attempting to gain
unauthorized access to any computer accessible over a network; or (d) engaging
in defamatory or tortious behavior; or (v) intentionally disrupting other users,
network services, or network equipment.
ARTICLE 3--PROMOTION AND SALE OF SUBSCRIPTIONS
3.1 Marketing and Promotion of Software Products by SiVault. SiVault agrees,
-----------------------------------------------------------
during the term of this Agreement, to use commercially reasonable efforts to
actively market and promote Software Product Subscriptions within the field of
Use. Without limiting the generality of that commitment, SiVault agrees to:
(a) furnish technical and sales information concerning Software Product
Subscriptions to prospective End Users of Software Products;
(b) promote Software Product Subscriptions in SiVault's trade shows/displays,
and pay for all costs (including travel costs of SiVault personnel and
other costs of SiVault in connection therewith) associated therewith;
(c) actively solicit inquiries and orders for Software Product Subscriptions
E-30
(e) jointly formulate with Viaquo detailed marketing plans for Software
Products, and provide Viaquo with quarterly updates on implementation of
such plans;
(f) maintain a fully trained staff of qualified personnel in order to perform
its obligations with respect to sales and marketing of Software Product
Subscriptions; and
(g) fully commission SiVaults sales force with respect to Software Product
Subscriptions to the same or greater extent that SiVault commissions its
sales force with respect to its own products/services (if any) or the
products/services of any third party.
3.2 Obtaining Reilulatory Approvals. Sivault shall be responsible for promptly
---------------------------------
obtaining, at its own expense, all consents, licenses, authorizations, filings,
registrations and other approvals necessary to lawfully host and otherwise offer
the Software Products in all applicable jurisdictions. SiVault shall obtain such
approvals on Viaquos behalf and, to the greatest extent possible, in Viaquo's
name Viaquo shall, upon request, provide reasonable assistance to SiVault in
connection with such efforts by SiVault, SiVault shall keep Viaquo informed of
progress in obtaining such approvals, provide Viaquo with copies of any
applications or submissions made in connection therewith, and upon request
permit Viaquo's representatives to participate. If for any reason all approvals
necessary to sell lawfully any Software Product in any Jurisdiction has not been
obtained within three (3) months after the execution of the applicable Product
Schedule, then Viaquo may, at its option, suspend or terminate the hosting
license for such Software Product, or in such jurisdiction, upon written notice
to SiVault.
3.3 Quarterly (Summary) Reporting. To assist Viaquo in determining market
-------------------------------------
conditions for Software Products in thc Field of Use and in planning and
developing new Software Products, within three (3) weeks after the end of each
calendar quarter during the term of this Agreement, and from time to time as
reasonably requested by Viaquo, SiVault shall provide Viaquo with a report
describing Subscriptions to Software Products during the quarter. Such reports
shall: (a) identify the average price of Subscriptions sold by SiVault to End
Users during such calendar quarter; (b) furnish information concerning the
computer system environments from which the End Users are accessing, or intend
to access, the Software Products; and (c) include any other information as
Viaquo may reasonably request from time to time.
3.4 No Bundling. SiVault shall not offer the Software Products in connection
-------------
with any unrelated third party products unless specifically approved in writing
by Viaquo in advance, This anti-bundling prohibition does not apply to third
party software necessary to the proper functioning of SiVault's services, which
may include, without limitation, biometric authentication software, transaction
clearing software, and data entry and report generation software.
ARTICLE 4-SUPPLY AND DELIVERY; ADDITIONAL DEVELOPMENT
4.1 Supply. Viaquo agrees, during the term of this Agreement, to supply SiVault
-------
with one (1) copy of each Software Product, together with an applicable License
Key (if any) therefor, as set forth in an applicable Product Schedule.
Additional copies will also be provided for mirrored and redundant ASP sites, as
well as End User organization sites running the same SiVault service on their
own internal servers.
4.2 Acceptance. SiVault shall inspect all Software Products promptly upon
-----------
receipt thereof for proper version numbers and serial numbers. SiVault may
reject any incorrectly shipped Software Product by returning the defective
Software Product in accordance with Viaquo's then-current RMA procedures. Any
products not returned within two (2) weeks from the date of receipt by SiVault
for a domestic location, or four (4) weeks from the date of receipt by ASP for
an international location, shall be deemed accepted by SiVault.
4.3 Changes to Software Products. Viaquo reserves the right to change Software
------------------------------
Products from time to time, whether by means of Updates, Upgrades, or new
releases thereof.
4.4 Additional Development. If, at SiVault's request, additional software
------------------------
development work is required reasonably to provide new features, such as ViaSeal
client software for other operating system platforms (e.g., Palm OS), or work to
interface ViaSeal to biometric authentication systems, or work to implement
features for or interfaces to other parts of the end system SiVault will offer
as a part of its hosting services, Viaquo shall perform such development work,
and SiVault shall provide any appropriate input and assistance. SiVault will pay
E-31
the non-recurring engineering ("NRE") charges required by Viaquo for such work,
and Viaquo will charge commercially reasonable rates for such NRE work Upon
creation, all such NRE work or other additions to the Software Product will
become Viaquo's sole property, and will automatically become a part of this
license agreement with no impact on the license royalty rate. If title to any
part of the foregoing should initially vest in Si Vault, SiVault hereby
irrevocably assigns to Viaquo the entire right, title and interest therein, and
agrees during and after the term of this Agreement to perform any act reasonable
required to perfect Viaquos title therein.
ARTICLE 5 -- REPORTS AND PAYMENTS BY SIVAULT
5.1 Monthly Sales Reports and Payments. Within ten (10) calendar days of the end
-----------------------------------
of each calendar month, SiVault shall: (a) report to Viaquo the total amount of
Gross Revenues (and newly activated end user seats) received by SiVault from all
business i-elated to the ASP service during that month; and (b) pay to Viague an
amount equal to the royalty percentage on all such Gross Revenues as specified
in the relevant Product Schedule (Sec Exhibit I). For purposes of this Section
5.1, a seat is "activated" when it is made available for use by an End User,
regardless of whether the End User actually uses the seat or not during that
month, and without regard to the existence, or amount, of any fee charged to the
End User by SiVault for access to such seat.
5.2 Payment Terms. SiVaut shall pay Viaquo all amounts in U.S. Dollars within
---------------
thirty (30) calendar days, regardless of whether SiVault has received payments
due to it from any End User. Any conversions from non-U.S. currencies to U.S.
dollars shall be made as of the last business day of the month during which the
payment is due, according to the daily 12noon buying rates of the U.S. Federal
Reserve Bank in New York (currently available at
hvcp://xxx.xx.xxx.xxx/xxxxxx/xxxxxxxxxx/xxxxxx0.xxxxx). All payments shall be
made by wire transfer to Viaquo's bank account no. 00000000 00000-00000, branch
no, 11-35/1210, at Bank of America (Milpitas Branch). 000 X. Xxxxxxxxx Xxxx.,
Xxxxxxxx, XX 00000, XXX. Any amount not paid within thirty (30) calendar days of
its due date shall be subject to a ten percent (I 0%) late penalty in addition
to any other recourse Viaquo may have under this Agreement.
5.3 SiVault shall be solely responsible for, and shall pay, any sales, use,
rental, receipt, personal property, value-added, consumption or other tax, levy
or similar governmental charge (except for income taxes assessed on Viaquo) that
may be assessed in any jurisdiction, whether based on gross revenue, the
delivery, possession or use of Software Products licensed under this Agreement,
the execution or performance of this Agreement or otherwise. If SiVault is
required under law to withhold any such charge from payments made under this
Agreement, then the amount actually remitted by SiVault to Viaquo will be
grossed up to ensure that Viaquo receives the Ml amount it would have been due
absent any such charge, using the following formula:
Grossed up amount = Scheduled amount / (1 - effective tax rate).
5.4 Audit Rights. SiVault shall keep and maintain sufficient records to
--------------
determine that SiVault is in compliance with the terms and conditions of this
Agreement. During the term of this Agreement and for one time thereafter, Viaquo
shall have the right to have an independent certified public accountant (or
equivalent) audit the records and accounts of SiVault to determine whether
SiVault is in compliance with the terms of this Agreement. Any such audit shall
be performed only during Si Vault's normal business hours, and shall be
performed in such a manner as to avoid unreasonable interference with Sivault's
business operations. Si Vault shall promptly remit to Viaquo any underpayment
discovered by the auditor. Should an audit reveal that the aggregate payments
made to Viaquo for all Software Products over the course of any calendar quarter
represent an underpayment of more than ten percent (10%) of the aggregate amount
actually due for such calendar quarter (a "Material Payment
-----------------
Noncompliance"),SiVault shall pay to Viaquo a penalty of ten percent (10%) of
-------------
the amount actually due, and reimburse Viaquo for the full costs (including
travel) of such audit, if SiVault has two (2) or more Material Payment
Noncompliances in any twelve month period, or has five (5) or more Material
Payment Noncompliances throughout the term of this Agreement, Viaquo may
terminate this Agreement for material breach. The audits are limited to once per
calendar year, and thither limited to once after expiration or termination of
this Agreement, except that following any auit that reveals a Material Payment
Noncompliance, Viaquo may demand additional quarterly follow-up audits (on the
same terms as set forth above) until the auditor in its professional judgment
determines that Sivault is in compliance with the terms of this Agreement.
ARTICLE 6-- INSTALLATION, OPERATION, SUPPORT AND MAINTENANCE
E-32
6.1 Training. Viaquo shall, at its expense, provide training for a reasonable
---------
number of SiVault technical personnel, at Viaquos facilities in San Jose,
California in the use, installation and maintenance of the Software Products. Si
Vault shall be responsible for the salary, subsistence and travel expenses of
any SiVault personnel receiving such training.
6.2 Installation. SiVault shall be responsible, at its expense, for: (a)
-------------
acquiring or leasing the Authorized Servers and any other equipment necessary to
host the Software Products; (b) installing the Software Products at Authorized
Servers; and Cc) obtaining any net-work access or other connectivity required
for End Users to access the Software Products; II' SiVault requests that Viaquo'
engineers or other personnel be on site for any installation of any Software
Product and Viaquo agrees to provide such personnel. Sivault shall pay Viaquo's
then-current standard consulting fees for such support, plus reimburse Viaquo
for travel and other costs incurred in connection therewith.
6.3 Service Levels. SiVault shall host the Software Products in accordance with
---------------
SiVault's standard service level agreement, but in no event less than
commercially reasonable levels as determined by contemporaneous industry
practices for the healthcare industry.
6.4 Support By SiVault. Except as provided in Sections 6.6 and 6.7, SiVault
---------------------
shall be solely responsible at its expense for providing all support to End
Users in connection with operation and use of the Software Products (including,
without limitation, software support for configuration. networking and other
routine operational issues). SiVault shall provide End Users with telephone,
email and Internet access to such support Sivault shall promptly report to
Viaquo all Program Errors of which SiVault becomes aware (whether from End User
reports or otherwise), and fully cooperate with Viaquo in reproducing, testing,
and remediating such Program Errors.
6.5 Staffing. SiVault shall employ sufficient engineers trained in the
---------
installation, operation, support and maintenance of Software Products to carry
out its responsibilities under Sections 6.2, 6.3 and 6.4. SiVault may delegate
implementation of its duties to qualified personnel, hut shall remain
responsible for the performance thereof.
6.6 Support By Viaquo. Viaquo shall at its expense provide "second tier" or
--------------------
backline support to SiVault, including:
(a) providing electronic mail or telephone support to SiVault with respect to
non-routine SiVault operational problems encountered by SiVault or its End
Users; and
(b) tracking Program Errors in Software Products reported by SiVault, and using
commercially reasonable efforts to provide fixes or workarounds for
material Program Errors.
Upon SiVault's request, Viaquo may at its discretion furnish technical
personnel for on-site assistance to SiVault to resolve Program Errors. In such
event, Sivault shall pay Viaquo's then-current standard consulting fees for such
support, plus reimburse Viaquo for travel and other costs incurred in
connection therewith.
6.T Updates and Upgrades. Viaquo shall provide SiVault with Updates at no cost,
---------------------
after such Updates are commercially released by Viaquo. SiVault shall be
responsible for ensuring that such Updates ate promptly installed on the
Authorized Servers, taking into account the urgency of the installation (e.g.,
to fix security holes, remediate infringements, etc.) as well as the need to
reasonably avoid disruptions to SiVault's hosting operations. Such installation
shall not, in any event, occur later than ninety (90) calendar days after
receipt of the Update from Viaquo. If SiVault believes that installation within
nu]ety (90) days is not commercially practicable, SiVault shall promptly inform
Viaquo, and the parties shall negotiate and cooperate in good faith to complete
the installation as expediently as possible under the circumstances. If SiVault
desires to receive Upgrades, the parties will negotiate the pricing therefor.
ARTiCLE 7-- REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
7.1 No Conflicting Agreements. Each party represents and warrants to the other
---------------------------
that, as of the Effective Date of this Agreement, it is not a party to any
agreement (including without limitation any hosting, license or distribution
agreements) that conflicts with the rights granted and obligations undertaken to
the other party under this Agreement. Each
E-33
party agrees that, during the term of this Agreement, it shall not enter into
any agreement that conflicts with the rights granted and obligations undertaken
to the other party under this Agreement.
7.2 Limited Software Product Warranty. Unless otherwise specified in an
-------------------------------------
applicable Product Schedule, Viaquo warrants that for a period of ninety (90)
calendar days from the dare of delivery to SiVault:
(a) each Software Product shall materially perform in accordance with the
relevant Documentation therefor; and
(b) the media on which Software Products are furnished shall be free of defects
in material and workmanship under normal use,
In case of breach of the above warranties, Viaquo shall use commercially
reasonable efforts to:
(c) repair or replace the Software Products failing to perform according to the
published specifications under (a) above, in accordance with Viaquo's
then-current RMA procedures; or
(d) repair or replace a copy of the Software Products haying defective media
within thirty (30) calendar days after return of the defective product in
accordance with Viaquo's then-current RMA procedures.
Except for the foregoing to the full extent allowed by applicable law, Software
Products are provided "AS IS." SiVault's exclusive remedy and Viaquo's entire
flability under this limited warranty will be, at Viaquo's option, to repair or
replace the Software Products.
7.3 Defects Not Covered by Warranties. Viaquo shall have no obligations under
------------------------------------
the warranty provisions set forth in Section 7.2 if any nonconformance would not
have occurred but for: (a) incorporation or utilization of any third party
program with a Software Product; (b) misuse, alteration, modification, or
enhancement of a Software Product; (c) use of a Software Product for other than
the specific purpose for which it was intended; or (d) or use of a Software
Product on any system other than the specified hardware platform for which it
was designed.
7.4 High Risk Activities. SiVault ACKNOWLEDGES THAT PRODUCTS MAY CONTAIN ERRORS
---------------------
AND ARE NOT DESIGNED OR INTENDED FOR USE IN ON-LINE CONTROL EQUIPMENT IN
HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING WITHOUT
LIMITATION, AIR TRAFFIC CONTROL, LIFE SUPPORT EQUIPMENT, OR WEAPONS SYSTEMS, IN
WHICH THE FAILURE OF THE PRODUCTS PRESENTS A HIGH PROBABILITY OF DEATH, PERSONAL
INJURY OR. SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (COLLECTIVELY, "HIGH RISK
---------
ACTIVITIES"). SiVault REPRESENTS AND WARRANTS THAT IT WILL NOT HOST, USE., OR
----------
LICENSE THE SOFTWARE PRODUCTS FOR HIGH RISK ACTIVITIES.
7.5 No Other Warranties. THERE ARE NO REPRESENTATIONS, WARRANTIES OR ASSURANCES
--------------------
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT. TO THE FULL EXTENT ALLOWED BY
APPLICABLE LAW, EXCEPT AS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS OR IMPLIED
CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT, ARE HEREBY DISCLAIMED.
ARTICLE 8 - INDEMNIFICATTON
8.1 Indemnification by Viaquo. Subject to the provisions of Section 8.3, Viaquo
--------------------------
shall defend and indemnify SiVault from and against any claims alleging that the
authorized hosting or use of Software Products delivered to SiVault under this
Agreement infringes any copyright or trade secret of a third party.
8.2 Indemnification by Sivault. Subject to the provisions of Section 8.3,
-----------------------------
SiVault shall defend and indemnify Viaquo from and against any claims to the
extent resulting from any: (a) breach of arty representation or warranty of
SiVault under this Agreement; (b) representation or warranty with respect to
E-34
Software Products made by SiVault beyond the warranties made by Viaquo to
SiVault under this Agreement; or (c) any failure of SiVault to comply with any
applicable law or regulation in the course of performing under this Agreement.
8.3 Conditions.
-----------
(a) Notification. The indemnities set forth in Sections 8.1 and 8.2 shall be
-------------
conditioned upon the indemnified party, prior to incurring any
indemnifiable expenses, promptly notifying the indemnifying party in
writing of any such claim suit, expense or the like.
(b) Control of the Matter. The indemnified party shall: (i) tender to the
indemnifying party exclusive authority to defend or settle the dispute; and
(ii) fully cooperate with the indemnifying party at the indemnifying
party's expense. If the indemnifying party does not elect to assume control
of the matter, it shall nevertheless indemnify the indemnified party as
provided in Sections 8.1 and 8.2. The indemnified party shall obtain the
indemnifying party's prior written approval of any settlement, which
approval shall not be unreasonably witheld.
8.4 Options. Should any Software Product hereunder become or, in Viaquo's
--------
opinion, be likely to become the subject of a claim or infringement or
misappropriation of a third party's intellectual property right, Viaquo at its
option may: (a) procure for Sivault, at no additional cost to SiVauIt, the right
to continue to host the Software Product; (b) replace or modify the Software
Product, at no additional cost to SiVault, to make such Software Product
non-infringing or non-misappropriating, provided that substantially similar
functionality and performance is obtained with the replacement or modified
Software Product; or (c) if the right to continue to host the Software Product
cannot be procured under commercially reasonable terms, or such Software Product
cannot be raplaced or modified at commercially reasonable time and expense,
terminate this Agreement (or the relevant portion thereof) upon written notice
to SiVault. Upon such termination, SiVault shall return to Viaquo any such
Software Products.
8.5 Exclusions. Notwithstanding anything to the contrary Viaquo shall have no
-----------
obligation to indemnify and defend SiVault or to pay costs, damages or
attorneys' fees for any claim based upon:
(a) the combination, operation, hosting or use of Software Products with other
equipment, code, programs or data not supplied by Viaquo if such
infringement or misappropriation would have been avoided but for the
combination, operation or use of Software Products with other equipment,
code, programs or data;
(b) hosting or use of other than the then-latest version of Software Products,
if such infringement or misappropriation could have been avoided by the
hosting or use of the latest version of Software Products and such latest
version had been made available to SiVault;
(c) modification of Software Products by SiVauk in the event such infringement
or misappropriation would have been avoided but for such modifications;
(d) hosting or use outside the scope of the licenses granted under this
Agreement; or
(e) modification of Software Products by Viaquo solely to comply with the
specifications or directions of SiVault unless Viaquo knew or reasonably
should have known that such modification would result in such infringement
or misappropriation.
ARTICLE 9- TERM AND TERMINATION
9.1 Term. The term of this Agreement shall commence on the Effective Date and
-----
shall continue for an initial term of three () years thereafter, subject to
automatic renewal for a successive two (2) year renewal term unless either xxx'
notifies the other party of its interest not to renew at least six (6) months
prior to the end of the initial or any renewal term, in which case this
Agreement shall expire. This Agreement may also be earlier terminated as
provided in Section 9.2.
9.2 Termination. This Agreement may be terminated as follows:
------------
E-35
(a) upon mutual agreement of the parties at any time;
(b) by either party at ha option immediately upon written notice, if the other
party materially breaches any material term or condition of this Agreement
and such material breach is not cured or corrected withm sixty (60)
calendar days;
(c) by Viaquo at its option immediately upon written notice, if SiVault
breaches its payment obligations pursuant to Article 5 five (5) or more
times in the aggregate;
(d) by either party at its option immediately upon written notice, if: (i) the
other party is adjudicated bankrupt or makes an assignment for the benefit
of creditors: (ii) it' a receiver, liquidation, administrator or trustee is
appointed for the other party's affairs (or any analogous procedure is
initiated); or (iii) the other party is dissolved; or
(e) by either party as provided in Article 12cr Section 13.11, or by Viaquo as
provided in Sections 5.4, 8,4 or 10.4.
9.3 Rights of Suspension. Viaquo may, at its option, suspend (rather than
terminate) this Agreement upon the occurrence of any event that would otherwise
have given Viaquo a right of termination under Section 9.2. Upon suspension of
this Agreement, Agreement, and if the suspension is not be cured to Viaquo's
reasonable satisfaction within six (6) months, then this Agreement shall
automatically terminate.
9.4 Effect of Suspension, Expiration or Termination.
------------------------------------------------
(a) Effect on Hosting License and Fees upon Suspension or Expiration. Upon
--------------------------------------------------------------------
suspension or expiration or termination of this Agreement for any reason: (1
the hosting license granted to SiVault and Viaquo's obligations under this
Agreement shall terminate with respect to SiVault's ability to sell the SiVault
service to new End User organizaons; (ii) providing SiVault is making the
appropriate royalty payments to Viaquo, SiVault may continue hosting of Software
Products to existing End User organizations including adding or removing End
Users to the system in response to existing End User organizations'
requirements, however SiVault shall not be permitted to sell its ASP services to
new End User organizations until, if suspended, the reason for the suspension is
cured, or if expired, a new agreement is signed. SiVault shall implement its
continued royally payment obligations by depositing all payments received from
SiVau]t End Users for services into a third party trustee account over which
Viaquo shall have control, and from which Viaquo shall direct payments to Si
Vault of any funds remaining after first collecting from the trustee account any
royalty fees owing to Viaquo from SiVault under this Agreement. When SiVault has
substantially cured the default that caused the suspension (if any) to Viaquo's
satisfaction, or signed a new or extension agreement with Viaquo (if expired),
SiVault may thereafter close the trustee account and deal with End User payments
in the normal course of its business and as contemplated by this Agreement.
(e) Survival. The following shall survive expiration or termination of this
---------
Agreement; (i) any provision expressly stated to survive; (ii) Articles or
Sections 1, 2.7, 5.3, 6.4, 7.3, 7.4, 7.5,8,9.4, 10, 11, 12 and 13; and (iii) any
amount then due and payable.
(d) Return of Software Products. If this Agreement expires or is terminated with
----------------------------
respect to an end user organization, SiVault shall (at its expense) return to
Viaquo (or at Viaquo's option, destroy) any Software Products in its possession.
End Users who discontinue paying SiVault for the ASP service, or whose licenses
otherwise expire or are terminated, shall also be required to required to
destroy or return all Software Products and associated documentation in their
possession.
ARTICLE 10 PROPRIETARY RIGHTS
10.1 Ownership. Sivault acknowledges and agrees that Viaquo owns and shall
----------
retain all right, title and interest in and to the technology or data comprising
the Software Products, and all intellectual property rights related thereto,
throughout the world.
E-36
10.2 Trademarks and Branding. It is understood that Sivault intends to privately
------------------------
brand the Software Product under us own name (e.g., RxSeal) and will add other
software to ViaSeal to provide a specialized transaction control system for
several types of applications. Whatever brand SiVault chooses, SiVault shall
brand its Software Product offerings as Secured by Viaquo,"or equivalent xxxx
approved by Viaquo, using a form of graphic to be provided by Viaquo. Such
branding shall be visible to the End User promptly upon accessing the Software
Product (e.g., on the "splash screen" at startup). SiVault acknowledges and
agrees that, as between Sivault and Viaquo, Viaquo owns and shall retain all
right, title and interest in Viaquo Trademarks. Except as set forth in this
---------------------------
Agreement or subsequently approved by Viaquo via email or letter, no license or
--------------------------------------------------------------------------------
right is granted to SiVault to use or display any trademark of Viaquo in any
--------------------------------------------------------------------------------
manner whatsoever on any product or document. SiVault agrees that neither it nor
---------------------------------------------
any of its Affiliates will register (or apply to register) any Viaquo Trademark.
All use and other acts by Sivault with respect to Viaquo Trademark under this
Agreement will inure to the benefit of Viaquo.
10.3 Proprietary Rights Notices. SiVault agrees that each copy of Software
-----------------------------
Products delivered to End Users shall contain the same copyright, patent,
trademark and other proprietary rights notices, if any, which appear on or in
such Software Products as delivered by Viaquo to SiVault, consistent with
SiVault's private branding requirements. SiVault shall not remove, obliterate or
modify arty of the required Viaquo Trademarks, or Viaquo's proprietary rights
notices, from any Software Product or from any audio or visual displays created
by the Software Product.
10.4 No Reverse Engineering. SiVault agrees during and after the term of this
-------------------------
Agreement not to alter, decompile, disassemble, reverse engineer, or otherwise
attempt to discover source code underlying the Software Products, or create any
Derivative Works based on the Software Products (all of the foregoing,
collectively, Viaquo shall have right to terminate this Agreement immediately if
Si Vault breaches this Section 10.4. If SiVault acquires any intellectual
property right arising out of any Prohibited Act, SiVault hereby assigns such
right to Viaquo, and shall during and after the term of this Agreement perform
any act necessary to perfect Viaquo's title in the foregoing.
10.3 Third Party Infringement. SiVault shall take all reasonable steps to
---------------------------
safeguard the Software Products from any unauthorized manufacture, duplication,
use, sale or other activity that might infringe or misappropriate any Viaquo
intellectual property right. SiVault shall promptly notify Viaquo upon
suspecting or becoming aware of any such activity. Upon Viaquo's request,
SiVault shall provide Viaquo with whatever assistance is reasonably necessary to
counter such activities.
ARTICLE 11 -- LIMITATION OF LIABILITY
11.1 Limitation. Viaquo's liability to SiVault for all claims relating to any
-----------
Software Product under this Agreement, whether for breach or in tort or arising
in any way in connection with this Agreement, shall be limited to one hundred
percent (100%) of' the aggregate amount having been paid by SiVault to Viaquo
for such Software Product.
11.2 Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT,
--------
PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR
ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS.
USE, DATE OR OTHER ECONOM(C ADVANTAGE), HOWEVER CAUSED AND UNDER. ANY THEORY OF
LIABILITY, WHETHER FOR BREACH OR TERMINATION OF THIS AGREEMENT, EVEN IF THAT
PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 Exception. The limitations of liability in Sections 11.) and 11.2 shall not
----------
apply to any breach of Articles 10 or 12.
ARTICLE 12-- CONFIDENTIALITY
12.1 Terms of Agreement. Neither party shall disclose the pricing or other
---------------------
economic terms of this Agreement, except to its affiliates, attorneys,
accountants or (potential or actual) investors, who have agreed in writing or
are otherwise bound to maintain the confidentiality of such terms,
E-37
12.2 Confidential Information. During the term of the Agreement each party may
--------------------------
be exposed to certain u7fotnlaticn concerning the other party's business,
products, proposed new products, customers, arid related information, which is
the proprietary or confidential information of the other party and is not
generally known to the public ("confidential Information"). Each party agrees
that during and after the term of this Agreement it shall not use any
Confidential Information of the other except in accordance with the provisions
of this Agreement and shall not disclose any Confidential Information of the
other to any third party without the prior written consent of such, other party
- Each party hereby consents to the disclosure of its Confidential Information
to the employees of the other as is reasonably necessary in order to allow the
other party to perform this Agreement and obtain the benefits hereof, provided
that each such employee is bound by a written confidentiality agreement
protecting such Confidential Information, Each party further agrees to treat all
Confidential Information of the other in the same manner as it treats its own
Confidential Information. Either party shall have the right to terminate this
Agreement: (a) immediately if the other party materially breaches this Section
12.2 and such breach can not be cui-ed or (b) lithe other party materially
breaches this Section 12.2 three (3) or more times throughout the term of this
Agreement.
12.3 Exceptions. The provisions of this Sections 12.1 and 12.2 shall not apply
-----------
to any part of the Confidential Information of a receiving party to the extent
that
(a) such information was in its possession prior to disclosure to it hereunder;
(b) such information was generally known or otherwise in the public domain
prior to disclosure to it hereunder, or becomes so known subsequent to such
disclosure through no fault of such party, except that the parties agree to
treat confidential details of the other parry's unannounced products arid
their introduction plans until such time as they are announced by press
release or official public communication;
(c) such information was received by it from a third party not under an
obligation to the owner of such information not to disclose it; or
(d) such information was independently developed by a party without the benefit
of the other party's Confidential Information.
ARTICLE 13 - GENERAL PROVISIONS
13.1 Notices. All notices required or permitted under this Agreement shall be in
--------
writing and shall be either delivered personally, sent by airmail, or sent by
facsimile or email with a confirmation copy sent by airmail or courier within
one (1) week, to the other party as follows:
If to Viaquo: Viaquo Corporation
0000 Xxxxx Xxxxx XXXxxx Xxxxx 000
Xxx Xxxx, XX 95 13 I
USA
Attention; Chief Executive Officer
Telephone: (000) 000.0000
Facsimile: (000) 000-0000
Email: xxxxxxx@xxxxxx.xxx
xxxxx@xxxxxx.xxx
If to SiVault: SiVault Analytics, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, XX 95 1. 10
U.S.A
Attention: Chief Executive Officer
Telephone: (408) 96l-805
Facsimile; (000) 000-0000
Email: xxxxxxx@XxXxxxx.xxx
xxxxxxx@XxXxxxx.xxx
E-38
Either party may change the address or facsimile number to which notices are to
be delivered or sent by written notice to the other party
13.2 Export. SiVault acknowledges that Software Products and technical data are
-------
subject to U.S. export control laws and regulations and may be subject to export
or import laws and regulations in other countries. SiVault acknowledges that it
has the responsibility to obtain all licenses as nay be required to export,
re-export or import Software Products or technical data after delivery to
SiVault under this Agreement. SiVault agrees not to export, re-export or import
Software Products or technical data related to it, except as permitted by, and
in strict compliance with, all such laws and regulations. Without limiting the
generality of the foregoing, SiVault shall in no event export or re-export any
Software Product to any country on the U.S. government's "T-7" list of
terrorism-supporting countries (currently available at
xxxx://x0.xxxxxx.xxx.xxx/xxx/xxx/xxx000xxxx.xxx) or to any person on the US.
government's "Denied Persons List" (currently available at
xxxx://xxx.xxx.xxx.xxx/xxx/Xxxxxxx.xxxx) or to any other prohibited location or
entity that may in the future be added to the U.S. Export Administration
Regulations. Viaquo reserves the right to revoke or limit the use of the
Software Product if necessary to prevent access to a Software Product by any
entity whose access thereto would violate any export regulation of the U.S.
government, and SiVault shall fully cooperate with Viaquo in the foregoing.
13.3 Transferability. Neither party may assign any of its rights, or delegate
----------------
any of its obligations, under this Agreement without the prior written consent
of the other xxxxx and any such attempted assignment, delegation or transfer
shall be void; provided, however, that Viaquo or SiVault may transfer this
Agreement in connection with a merger or acquisition of substantially all of its
business, assets or equity relating to the subject matter hereof, provided that
the transferee agrees in writing to honor all the terms and conditions of this
Agreement.
13.4 Escrow. Viaquo agrees to place the source code of the Software Products
-------
into escrow for the duration of this agreement (see Exhibit III).
13.5 Governing Law. This Agreement shall be construed and governed by the laws
---------------
of the State of California as applied to transactions taking place wholly within
California between California residents. This Agreement shall not be governed by
the U.N. Convention on Contracts for the International Sale of Goods. The
parties hereby submit to the personal jurisdiction of and agree that any legal
proceeding with respect to or arising under this Agreement shall be brought
exclusively in, the federal and state courts located in the State of California.
13.6 Waiver. No delay, omission or failure to exercise any right or remedy
-------
provided for in this Agreement shall be deemed to he a waiver thereof or an
acquiescence in the event giving rise to a right or remedy, but every such right
or remedy may he exercised, from time to time, as may he deemed expedient by the
party exercising such right or remedy.
13.7 $everability. In the event that any provision of this Agreement is found to
be invalid or unenforceable it will be enforced to the extent permissible and
the remainder of this Agreement shall remain, in full force and effect.
13.8 Relationship Between the Parties. The parties are independent contractors
----------------------------------
to each other, and neither party has the authority to make any statement,
representation, warranty or other commitment on behalf of the other xxxxx. This
Agreement does not create any agency, employment, partnership, joint venture or
similar relationship between the parties.
13.9 Construction. This Agreement has been negotiated by the parties hereto and
-------------
by their respective counsel. This Agreement will be fairly interpreted and
construed in accordance with its terms and without strict interpretation or
construction in favor of or against either party. The headings appearing in this
Agreement are inserted only as a matter of convenience and in no way define,
limit, construe or describe the scope or extent of such section, or in any way
affect this Agreement. The term "including" (aid all variants thereof) shall be
construed to mean "including", without limitation."
13.10 Amendment. No amendment or modification of this Agreement shall be valid
----------
or binding upon the parties unless made in writing and signed by or on behalf of
each path.
E-39
13.11 Entire Agreement. This Agreement, together with its Exhibits and Product
------------------
Schedules, constitutes the entire agreement between the parties with respect to
the subject matter hereof, and shall supesede any prior agreements or
understandings between the parties, whether written or oral, with respect to the
subject matter hereof. This Agreement was made in the English language, and
the English language version thereof shall be the sole legally binding version
hereof. No non-English language version of tins Agreement may be used to affect
any right or obligation between the parties relating to this Agreement
13.12 Force Majeure. Except as may be otherwise provided in this Agreement,
--------------
neither party will be deemed to have materially breached this Agreement to the
extent that performance of its obligations are delayed or prevented by reason of
any act ot government or government regulation, natural disaster, act of God,
fire, earthquake, flood, storm accident, shortage of equipment, materials,
supplies or services beyond the reasonable control of such party, strike, labor
dispute or walkout, war, riot, insurrection., civil commotion, or any other
cause beyond the reasonable control of such party; provided that such party
promptly notifies the other party of the nature and duration of such force
majeure event but only for so long as such force majeure event continues.
However, if such performance is delayed or prevented for a period exceeding
ninety (90) calendar days, the other party shall he entitled to terminate this
Agreement.
13.13 Execution. This Agreement may be executed using facsimile signature pages
---------
(without requiring confirmation copies pursuant to Section 13.1) and/or in
counterparts, each of which shall be deemed an original and legally binding
signature. Each party agrees not to (directly or indirectly) assert that this
Agreement has been improperly executed, Or is ineffective, based on the use of
counterparts or facsimile signatures.
IN WITNESS WHEREOF, the undersigned have entered into this Agreement as of the
Effective Date.
VIAQUO CORPORATION SIVAULT ANALYTICS, INC.
By: /s/ X.X. Xxxxx By: /s/ Xxxxxxx Xxxxxxxxxxx
Name: X.X. Xxxxx Name: Xxxxxxx Xxxxxxxxxxx
Title: CEO Title: CEO
Date: 6/3/04 Date: 6/3/04
E-40
EXHIBLT I - PRODUCT SCHEDULE
This Exhibit I may be amended or modified from time to time by the parties, by
mutual agreement and signature. All such new Exhibit I versions shall be
attached to this agreement to provide an appropriate audit trial of the
relationship.
Software Products
-----------------
Viaquo's ViaSeal software, primarily consisting of the server and client
modules, with associated databases, token generators, Plug-ins, Software
Development Kit (SDK) and other associated software
Prohibited Competing Products
-----------------------------
[TBD]
Exclusivity Requirements
--------------------------
SiVault's exclusive area shall he defined as the combination of all of the
following conditions (a logical XXXxxx of conditions), evaluated on a
country-by-county basis throughout the world:
1. A hosted Application Service Provider (ASP) service provided by SiVault,
either directly as a service-for-fee arrangement with a SiVault End User,
or indirectly, through a SiVault's End User hosting its own copy of the
SiVault ASP software system, where fees are collected in essentially the
same manner, except that such fees may be lower in consideration of the
investment and services provided directly by the End Users.
2. A transaction-based service, wherein the ViaSeal Software Product is a
component part of the system.
3. An application in the Health Care industry, including the services consumed
by related companies such as hospitals, doctors' offices, medical clinics,
health care insurance companies, transactions clearing companies, and
stores, governmental authorities and other organizations necessary for the
service to work or to be interfaced to.
Any and all applications outside of the above definition is an area in which
SVault may also operate, although it will not have exclusivity iii such areas.
Because the above definition of exclusivity is extremely broad and may be
difficult to measure as the business for both companies evolve, the ultimate
test of whether exclusivity applies is that a license to another Viaquo customer
that appears to satisfy the above three conditions and would compete with or
damage SiVault's ASP business as then being operated, is automatically defined
as falling within the exclusive area.
If a prospective Viaquo customer requests to license the Software Products in an
application area that may arguably fall under the above definition, but in which
SiVault is not then operating and has no plans to operate in, SiVault shall have
a one-month right of first refusal on any such Software Product license,
providing it meets the same terms and prices as the prospective Viaquo customer.
SiVault and Viaquo agree that they may jointly license their products to any
End User, providing both parties agree in writing to the terms and prices.
Exclusivity Commitment by SiVault
---------------------------------
Since Viaquo has invested in excess of ten million dollars in the development of
the Software Product, Sivault's exclusivity in the Field of Use cannot be
maintained unmodified if SiVault cannot generate sufficient royalties for
Viaquo.
Therefore, this agreement will be reviewed every 12 months by the Executive
Management of Viaquo and SiVault to determine contract compliance and level of
royalties generated. The review dates will be
E-41
May 15, 2005
May 15, 2006
May 15, 2007
If, upon any such review, Viaquo determines that SiVault is not generating
sufficient royalties for Viaquo, then Viaquo shall be allowed to modify the
exclusivity by soliciting other customers in the Field of Use, and ifa
prospective ASP licensing arrangement is forthcoming with a customer, SiVault
shall be entitled to a one-month first right of refusal on that business deal,
and any succeeding deal, until acceptable continuous minimum royalty rates
(amounts) are paid to Viaquo by SiVault, at which time Viaquo shall suspend
solicitations of other customers in the Exclusive Field of Use.
Pricing Schedule
-----------------
Immediately upon signing this Agreement, SiVault shall pay a non-refundable sum
of two hundred fifty thousand dollars ($250,000), followed by another
non-refundable payment of fifty thousand dollars (550,000) within six months.
In addition, for all provision of SiVault services to any End User, SiVault
shall pay to Viaquo, ten percent (10%) of all Gross Revenues received by SiVault
or its applicable subsidiaries, if any. for as long as such services are
provided, whether this Agreement is in effect, or suspended, expired or
terminated.
IP Addresses of Authorized Servers
----------------------------------
[TBD]
IN WITNESS WHEREOF, the undersigned have entered into this Exhibit I as of the
Effective Date.
VIAQUO CORPORATION SIVAULT ANALYTICS, INC.
By: /s/ X.X. Xxxxx By: /s/ Xxxxxxx Xxxxxxxxxxx
Name: X.X. Xxxxx Name: Xxxxxxx Xxxxxxxxxxx
Title: CEO Title: CEO
Date: 6/3/04 Date: 6/3/04
E-42
EXHIBIT H- END USER LICENSE AGREEMENT
(starts on next page)
END USER SOFTWARE LICENSE AGREEMENT
(for software accessed on-line through SiVault Analytics, Inc.)
This end user software license agreement (the "Agreement") is effective as of
the Effective Date (as defined in Section 61) between Viaquo Corporation
("Viaquo"), a Delaware corporation having its principal business office at 0000
Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 0000], SiVault Analytics,
("SiVault"), a California corporation having its principal business office at
000 Xxxxxxx Xxxxx. Xxxxx 000, Xxx Xxxx, XX. 00000 and
----------------
having an address at
--------------------------------------------------------
("Licensee").
ARTICLE 1 -- DEFINITIONS
"SiVault" is an application service provider that, pursuant to a contract with
---------
Viaquo, hosts the Software for on-line access by licensees.
"Order Schedule" means a document by which licensee orders Software
-----------------
subscriptions from SiVau]t.
"Respective Software Component" means, in relation to the Software, the
---------------------------------
portion(s) thereof owned by Viaquo or SiVault, respectively.
"Software" means the combination of Viaquo and SiVault software products listed
----------
in the applicable Order Schedule, together with any related updates, user
guides, bistructions, reference materials provided to Licensee by Viaquo and/or
SiVault. The Software is limited to object code form only. Unless otherwise
specified on an Order Schedule, the Software will include SiVaults RxSeal
transaction software, secured by Viaquo's ViaSeal software.
ARTICLE 2 -- LICENSES
2.1 Software Licenses. Viaquo and SiVault hereby grant Licensee a nonexciusive,
------------------
nontransferable license to access the Software as hosted by SiVault in
accordance with this Agreement, aid to use the Software solely for Licensee's
internal business operations. The scope and term of the license may be further
limited by an applicable Order Schedule.
2.2 Limitation on License. Licensee shall not: (a) disassemble, reverse
engineer, decompile or otherwise attempt to discover source code underlying the
Software; (b) modify, translate or create derivatives of the Software; (c) rent,
transfer, operate a service bureau using the Software; or (d) permit any use of
the Software by any third party not expressly authorized in this Agreement. If
Licensee acquires any intellectual property right arising out of any breach of
provision (a) or (b) above, and depending upon whether the software involved is
the property of Viaquo. or SiVault, Licensee hereby assigns such right to Viaquo
or SiVault, as appropriate, and shall during and after the term of this
Agreement perform any act necessary Confidential to perfect Viaquo's Or
SiVault's title in the foregoing. No rights are granted except as expressly set
forth in this Agreement, and no right or forbearance may be construed under any
theory of implication, estoppel or otherwise.
ARTICLE 3 -- CONFIDENTIALITY
Licensee acknowledges that the Software comprises proprietary and confidential
information of Viaquo and SiVault. Licensee shall not use the Software, or
disclose any code thereof to any third party. except as permitted by this
Agreement. In no event will Licensee use less care to protect the Software than
it uses to protect its own non-public information of equal importance.
ARTICLE 4 -- MAINTENANCE & SUPPOIT
4.1 Generally. Viaquo does not provide direct maintenance or support to
----------
licensees. If desired, Licensee should contact SiVault for maintenance or
support.
4.2 Error Testing. Upon Viaquo's or SiVault's request, Licensee agrees to test
---------------
and verify any suspected error or defect in the Software and to report such
errors or defects to Viaquo or SiVault in a timely manner.
ARTICLE 5-WARRANTY & INDEMNIFICATION
5.1 Warranties. Viaquo and SiVault represent and warrant for a period 90
-----------
calendar days from the Effective Date that: (a) their Respective. Software will
materially conform with the applicable Viaquo or SiVault documentation therefor;
and (b) their Respective Software does not infringe any copyright, trade secret
or trademark right or any third party.
5.2 Disclaimer. EXCEPT FOR THE FOREGOING, NO OTHER WARRANTIES ARE MADE,
-----------
STATUTOBY, EXPRESS OR. IMPLIED, WITH RESPECT TO THE SOFTWARE AND ANY SERVICES
PROVIDED HEREUNDER. VIAQUO AND SJVAULT SPECIFICALLY DTSCLAIM ANY WARRANTIES OR
MERCHANTABILITY AND FITNESS FOR. A PARTICULAR PURPOSE.
E-43
5.3 Remediation. If the Software does not materially conform with the Viaquo and
------------
SiVault documentation therefor, Viaquo and SiVault shall at their option either
modify their Respective Software or the documentation to remediate the
noncompliance. if there is a claim (or threat of a claim) of infringement or
misappropriation of any intellectual property right of any third party, Viaquo
or SiVault may in their discretion: (a) procure for Licensee the right to
continue using their Respective Software; (b) replace or modify their Respective
Software to make it non-infringing; 01(c) il'(a) and (b) are not commercially
practicable, terminate the relevant portion of the license. The provisions of
this Section 5.3 shall be the exclusive remedy for breaches of the warranties
set forth in Section 5.1.
5.4 LIMITATION ON LIABILITY. TO THE EXTENT ALLOWED DY APPLICABLE LAW, AND EXCEPT
------------------------
FOR BREACHES OP ARTICLE 3 OR FOR ACTS OF INTENTIONAL MISCONDUCT OR GROSS
NEGLIGENCE: (A) IN NO EVENT WILL ANY PARTY BE LIABLE FOR ANY LOSS OF PROFITS,
LOSS OR INTERRUPTION OF BUSINESS, LOSS OF USE OR DATA, OR FOR ANY INDIRECT,
SPECIAL, INCIDENTAL 01. CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF SUCH PARTY
HAS.BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY'S
AGGREGATE LIABILITY TO THE OTHER PARTIES FOR DAMAGES IN ANY WAY RELATED TO THE
SUBJECT MATTER OF THIS AGREEMENT, AND REGARDLESS OF THE FORM OF ANY CLAIM OR
ACTION, WILL NOT EXCEED AMOUNT OF TOTAL FEES PAID OR PAYABLE FOR THE SOFTWARE
HEREUNDER.
ARTICLE 6 -- TERM & TERMINATION
6.1 Term. This Agreement will take effect when Viaquo has received an executed
-----
copy hereof from the Licensee ("Effective Date") This Agreement and each license
granted hereunder, unless otherwise indicated in the applicable Order Schedule,
will remain in effect unless and until terminated.
6.2 Termination. This Agreement will automatically terminate if the contractual
-----------------
agreement between Viaquo and SiVault, pursuant to which SiVault is authorized to
host the Software, expires or is terminated, unless Viaquo by written notice
transfers Licensee to another Application Service Provider (ASP). Licensee may
terminate this agreement or any license at any time. Viaquo or SiVault will have
the right to terminate this Agreement if Licensee materially breaches this
Agreement (or a condition of the relevant license) and fails to cure such breach
within thirty (30) calendar days following written notice of such breach; or if
the breach is curable yet not of a type that with the exercise of diligence can
be cured within thirty (30) days, Licensee does not within such thirty day
period initiate all steps necessary to remedy the breach and thereafter
diligently prosecute the same to completion.
6.3 Effect of Termination. Except as otherwise provided herein, upon the
-----------------------
effective date of any license termination, the Licensee shall cease using the
Software, and return to SiVault or destroy all copies thereof in Licensee's
possession.
6.4 Survival of Obligations. The following provisions will survive termination
-------------------------
of this Agreement for any reason: (a) Articles or Sections 2.2, 3, 5.4 & 7 and
(b) any provision that expressly indicates it will survive.
ARTICLE 7 -- GENERAL PRO VISIONS
7,1 Notices. All notices required or permitted under this Agreement shall be in
--------
writing and shall be either delivered personally, sent by airmail, or sent by
facsimile or email with a confirmation copy sent by airmail or courier within
one (I) week, as follows.
If to Viaquo:
Viaquo Corporation
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000, U.S.A.
Attention; Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxxx@xxxxxx.xxx
xxxxx@xxxxxx.xxx
If to SiVault:
SiVault Analytics, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, XX 00000, U.S.A
Attention: Chief Executive Officer
Telephone: (40$) 000-0000
Facsimile: (707) 024-0147
Email: xxxxxxx@XxXxxxx.xxx
xxxxxxx@XxXxxxx.xxx
If to Licensee: As set forth in the and/or in the signature block.
first paragraph
7,2 Export. Licensee acknowledges that the Software is subject to U.S. export
-------
control laws and regulations and may be subject to export or import laws and
regulations in other countries. Licensee shall not export, re-export or import
the Software except as permitted by, and in strict compliance with, all such
laws and regulations.
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Without limiting the generality of the foregoing, Licensee shall in no event
export or re-export the Software to any country on the U.S. government's "T-7"
list of terrorism- supporting countries (currently available at
xxxx://x0.xxxxxx.xxx.xxx/xxx/xxx/xxx/000xxxx.xxx) or to any person on the U.S.
governments "Denied Persons List" (currently available at
http:/xxx.xxx.xxx.xxx/xxx/Xxxxxxx.xxxx) or to any other prohibited location or
entity that may in the future be added to the U.S. Export Administration
Regulations. Viaquo reserves the right to terminate access to the Software to
any entity whose access thereto would violate any export regulation of the U.S.
government.
7.3 Transferability. Neither party may assign any of its rights, or delegate any
----------------
of its obligations under this Agreement without the prior written consent of the
other party and any such attempted assignment, delegation or transfer shall be
void; provided, however, that Viaquo or Licensee may transfer this Agreement in
connection with a merger or acquisition of substantially allot its business,
assets or equity relating to the subject matter hereof, provided that the
transferee agrees in writing to honor all the terms and conditions of this
Agreement.
7.4 Governing Law. This Agreement shall be construed by the laws of the State of
--------------
California, without reference to choice of law principles. The U.N. Convention
on Contracts for the International Sale of Goods shall not apply. The parties
submit to the personal, jurisdiction of the federal and state courts located in
the State of California, and agree that any legal proceeding relating to this
Agreement shall be brought exclusively therein.
7.5 Waiver. No delay, omission or failure to exercise any right or remedy
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provided for in this Agreement shall be deemed to be a waiver thereof or an
acquiescence in the event giving rise to a right or remedy, but every such right
or remedy may be exercised, from time to time, as may be deemed expedient by the
party exercising such right or remedy.
7,6 Severability. In the event that any provision of this Agreement is found to
-------------
be invalid or unenforceable, it will be enforced to the extent permissible and
the remainder of this Agreement shall remain in hill force and effect.
7.7 Construction. This Agreement will be construed without strict interpretation
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or construction in favor of or against either party. The headings in this
Agreement are for convenience only and shall not in any way affect this
Agreement. The verb "to include" (and all variations thereof shall not be
construed as a term of limitation, unless expressly indicated by the context in
which it is used.
7.8 Entire Agreement. This Agreement, together with its associated Order
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Schedule, constitutes the entire agreement (and supersedes any prior agreements)
between the parties, whether written or oral, with respect to the subject matter
hereof; provided, however, that no term in an Order Schedule may vary any term
of this Agreement unless expressly provided for hereunder. This Agreement was
made rn the English language, and the English language version thereof is the
only legally binding version hereof. No non-English language version of this
Agreement may affect any right or obligation between the parties relating to
this Agreement.
Execution. This Agreement may be executed using a facsimile signature page
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(without requiring confirmation copies pursuant to Section 7.1), which shall be
deemed an original and legally binding signature. Each party agrees not to
(directly or indirectly) assert that this Agreement has been improperly
executed, or is ineffective, based on the use of a facsimile signature page.
Agreed and accepted for Licensee:
Company Name:
------------------------------
Company Address:
------------------------------
Company Address
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Company Website:
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Date Executed
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Authorized Signature:.
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Contact Name:
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Contact Title:
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Contact Email:
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Contact Telephone:
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Contact Facsimile:
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EXHIBIT III-ESCROW
A separate Escrow Agreement shall be placed under this section within 30 days
from the execution of this Agreement.
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