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EXHIBIT 10.24
THIS (the "Agreement") Is between
SIEBEL SYSTEMS, INC., with its principal place of business at 0000 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxxx, XX 00000 ("Siebel"), and XXXXXX ASSOCIATES, INC. DBA XXXXXX
SOFTWARE ("Distributor"), with its principal place of business at 000 Xx. Xxxxx
Xxxxxx, Xx. Xxxx, XX 00000.
1. DEFINITIONS
1.1 "AFFILIATE" shall mean any corporation, company or other entity
Controlled by, or Controlling, Distributor. As used in this Section 1.1,
"Control" shall mean control of thirty percent (30%) or more of the outstanding
shares of stock of the controlled entity. Such entity shall be deemed to be an
"Affiliate" only so long as such Control exists. Upon request, Distributor
agrees to confirm the Affiliate status of a particular entity.
1.2 "ANCILLARY PROGRAMS" shall mean the third party are delivered with the
Licensed Software as specified in Exhibit A an Order Form, or the Documentation.
1.3 "CUSTOMER" or "END USER" means an entity to whom Distributor provides a
valid license to use the Licensed Software in accordance with the terms of this
Agreement for such entity's internal business purposes in accordance with the
End User Licenser Agreement, and not for redistribution or resale.
1.4 "DOCUMENTATION" shall mean Siebel's then current on-line help, guides
and manuals published by Siebel and made generally available by Siebel for the
Licensed Software. As of the Effective Date, the Documentation to be provided by
Siebel to Customer is described such guides and manuals for the Licensed
Software are described in EXHIBIT C.
1.5 "EFFECTIVE DATE" shall mean the effective date set forth at the end of
this Agreement.
1.6 "END USER LICENSE AGREEMENT" shall mean Distributor's standard license
agreement pursuant to which Distributor licenses the Licensed Software to End
Users which includes the minimum terms and conditions set forth in EXHIBIT F.
1.7 "FIRST-LINE SUPPORT" shall mean direct technical support of Licensed
Software provided to Users, as set forth in Section 3.4(a).
1.8 "LICENSED SOFTWARE" or "PROGRAMS" means the object code form of the
software programs listed on EXHIBIT A attached hereto excluding the Ancillary
Programs listed on EXHIBIT A plus any other programs that Siebel in its sole
discretion authorizes Distributor to distribute in accordance with this
Agreement.
1.9 "LICENSE TERM" means the period commencing on the Effective Date and
continuing for the duration of the Initial Term as set forth in EXHIBIT A plus
any additional terms agreed upon by the parties pursuant to Section 12.1, unless
earlier terminated as set forth in Section 12.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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1.10 "MARKETING MATERIALS" means Siebel's standard brochures, data sheets,
collateral, magazines, article reprints, industry analyst reports, videotapes,
books and other marketing materials that Siebel, in its discretion, makes
available to Distributor to assist in its marketing and promotion of the
Licensed Software.
1.11 "MAINTENANCE FEES" means the maintenance fees set forth in EXHIBIT A
due and payable to Siebel for the First-Line Support, Second-Line Support and/or
Third-Line Support provided by Siebel.
1.12 "MAINTENANCE AND SUPPORT SERVICES" shall mean the services set forth in
Section 3.4.
1.13 "ORDER FORM" shall mean the schedule or other document, which
substantively contains all the material terms in the sample order form set forth
in EXHIBIT G, that specifies the Licensed Software licensed to a particular
Customer by Distributor as may be modified by Siebel in its sole discretion from
time to time; provided that Siebel will not modify the Order Form in any manner
which, in the reasonable opinion of Distributor, materially increases
Distributor's costs without the prior written consent of Distributor.
1.14 "PRE-PRODUCTION PROGRAM" shall mean a software program which is (i) not
generally licensed for commercial use by Siebel, (ii) not listed as generally
available in Siebel's marketing literature, or (iii) designated by Siebel as an
"Alpha," "Beta," or "Pre-Production" program or release.
1.15 "SECOND-LINE SUPPORT" shall mean direct technical support of Licensed
Software provided to Customers, as set forth in Section 3.4(b).
1.16 "SOLUTION" means the Licensed Software integrated with the Value Added
Offering integrated as provided in Section 3.1.
1.17 "SUBLICENSE FEE" means the sublicense fee set forth in EXHIBIT A due
and payable to Siebel for each license of the Licensed Software to a Customer.
1.18 "SUPPORTED PLATFORM" shall mean the hardware and software platforms
(e.g., database service systems, application server systems, and client systems)
that are supported by Siebel as expressly set forth in the Documentation. The
requirements for the Supported Platform are subject to change as specified by
Siebel in its discretion with ninety (90) days prior written notice to Customer
or Distributor; provided that Siebel may only specify a change to the relational
database management system (RDBMS) upon four (4) months prior written notice to
Customer or Distributor; provided, however, that if Siebel has notified Customer
or Distributor of a change to the Supported Platform and a warranty or
maintenance claim would be resolved by operating the Licensed Software on the
Supported Platform as changed, then Siebel shall have no liability for such
warranty or maintenance claims. Notwithstanding the foregoing, Siebel shall have
the right to make new versions of the Licensed Software generally available on
any Supported Platform, at Siebel's sole discretion, without providing any prior
notice to Customer or Distributor.
1.19 "TERRITORY" shall be the geographic area described in EXHIBIT A.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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1.20 "THIRD-LINE SUPPORT" shall mean technical support of Licensed Software,
as set forth in Section 3.4(c).
1.21 "TRAINING MATERIALS" shall mean the standard generally available Siebel
training materials, as set forth in the technical services schedule in effect at
the time such training materials are ordered by Distributor.
1.22 "UPDATE" means an updated or enhanced version of any of the software
programs listed on EXHIBIT A, in object code format, that is generally released
by Siebel, in its discretion, to its distributors and customers. Updates shall
not include any future separate product, or any upgrade in features,
functionality or performance of the Licensed Software which Siebel licenses to
customers separately or offers to other customers generally and only for an
additional fee; provided, however, that, as long as Customer is current on
Maintenance fee obligations. Updates shall include all (i) bug fixes, patches,
and maintenance releases, (ii) new point releases denoted by a change to the
right of the first decimal point (e.g., v3.0 to 3.1), and (iii) new major
version releases denoted by a change to the left of the first decimal point
(e.g., v3.0 to 4.0).
"USER" shall mean the named or specified (by password or other user
identification) individuals authorized by Customer to use Licensed Software,
regardless of whether the individual is actively using the Licensed Software at
any given time. The maximum number of Users that may use the Licensed Software
shall be specified in an Order Form. Users may include the employees of Customer
or third parties, provided that such third party is limited to use of the
Licensed Software (i) only as configured and deployed by Customer, and (ii)
solely in connection with Customer's business operations as conducted by or
through such third party, including but not limited to the installation,
administration or implementation of the Licensed Software for Customer.
Distributor agrees that under the terms of each End User License Agreement, the
Customer will be responsible for ensuring that any third party usage is
authorized by Customer in accordance with the terms and conditions of this
Agreement. Notwithstanding the foregoing, Users shall exclude any individuals
employed by, or acting on behalf or under the direction or control of, a direct
competitor of Siebel. Upon Distributor's request to Siebel, Siebel shall confirm
for Distributor whether any given entity is a direct competitor of Siebel.
1.23 "VALUE ADDED OFFERING" means the hardware, software, and/or services,
as described in EXHIBIT A, that Distributor provides to Customers in connection
with the Licensed Software.
2. GRANT OF RIGHTS
2.1 LICENSE GRANT. In consideration for the payment of Sublicense Fees and
subject to the terms and conditions of this Agreement, Siebel hereby appoints
Distributor as a distributor of the Licensed Software and the Ancillary Programs
and grants to Distributor the following non-transferable rights (except as
provided in Section 13.11 below), all of which may be exercised only by
Distributor in the Territory and during the License Term. This appointment shall
be on a nonexclusive basis. These rights may not be sublicensed except as
expressly permitted in this Section 2.1.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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(a) To reproduce, exactly as provided by Siebel, object code
copies of the Licensed Software and Ancillary Programs or portions thereof
solely to exercise the rights granted in this Section 2.1;
(b) To distribute and sublicense to Customers the right to use the
Licensed Software and Ancillary Programs or portions thereof on a perpetual
license basis only in accordance with the terms of the End User License
Agreement, subject to the restrictions in Section 5;
(c) Except to the extent otherwise agreed in a separate written
agreement between Siebel and Distributor, to use the Licensed Software and
Ancillary Programs for the sole purposes of operating the Licensed Software on
any number of Distributor's computer hardware and operating system(s) to (i)
test and evaluate the Licensed Software, (ii) train Distributor's personnel in
the marketing and sales of the Licensed Software, (iii) demonstrate and promote
the Licensed Software to potential Customers, and (iv) provide First-Line
Support and Second-Line Support to Customers by using the License Software in a
test environment to (1) diagnose reported problems or performance deficiencies
of the Licensed Software, and (2) resolve such problems or deficiencies.
Notwithstanding the foregoing (except to the extent otherwise agreed in a
separate written agreement between Siebel and Distributor), Distributor may (i)
not use the Licensed Software internally in a production capacity to run any of
its business operations including the sales and customer service activities
associated with its End User Customers, or (ii) use the Siebel Tools Programs
set forth in EXHIBIT A solely in accordance with the Documentation for the
limited purpose of configuring the Licensed Software for distribution with the
Value Added Offering and not for general application development purposes.
Notwithstanding the foregoing, Distributor may prepare object definitions
contained in the Siebel object repository of the Licensed Software solely by
using the Siebel Tools Programs ("Customer Object Definitions"); provided that
(i) Distributor may not modify any portion of the Licensed software; (ii)
Distributor shall retain all title, copyright and any other rights in and to any
Customer Object Definitions, provided however that such rights shall expire upon
the termination of this Agreement; (iii) any Customer Object Definitions shall
become a part of the Licensed Software to which this Agreement shall apply,
provided however Siebel may not use or license the Customer Object Definitions
during the License Term unless Siebel independently develops the same or similar
object definitions without use of or reference to the Customer Object
Definitions; and (iv) Distributor shall distribute Customer Object Definitions
in accordance with this Agreement only if Customer Object Definitions are used
solely in conjunction with the Licensed Software and Distributor does not
separate any Customer Object Definitions from the Licensed Software in any
manner. It is further understood and agreed that Distributor must provide a
license to use the Siebel Tools Programs to all Customers.
(d) To distribute to Customers, exactly as, provided by Siebel,
any Documentation, Training Materials and Marketing Materials provided by
Siebel, subject to the payment of fees set forth in Section 6.2. Distributor
shall not reproduce the Documentation, Training Materials, or Marketing
Materials for any purpose.
2.2 END USER LICENSE AGREEMENT. Distributor shall enter into a written End
User License Agreement with each Customer to whom Distributor grants any rights
to use Licensed Software, Ancillary Programs or Documentation (subject to
EXHIBIT C). Each End User License
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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Agreement shall (i) contain the minimum terms attached hereto as EXHIBIT F and
(ii) be at least as protective of Siebel's rights and interests as the terms of
EXHIBIT F. Each End User License Agreement shall specify the maximum number of
Users permitted to use the Licensed Software and Ancillary Programs. Distributor
shall use reasonable efforts to prevent Customer from exceeding the maximum
number of Users set forth in the End User License Agreement. In the event that
Distributor learns that a Customer has exceeded such maximum, Distributor shall
so notify Siebel and shall use reasonable efforts to collect the corresponding
license fees from Customer, upon the receipt of which Distributor shall pay the
corresponding Sublicense Fees to Siebel for the increased Users.
2.3 SOURCES CODE ESCROW. Customer shall have the right to become a
beneficiary to the Master Preferred Escrow Agreement between Siebel and Data
Securities International, Inc., a copy of which will be provided to Customer
upon request and which will be incorporated by reference into this Agreement
when Customer executes an Acceptance Form pursuant to the Master Preferred
Escrow Agreement. All rights and licenses granted under or pursuant to this
Agreement are and shall otherwise be deemed to be, for purposes of Section
365(n) of the U.S. Bankruptcy code, licenses of rights to "intellectual
property" as defined under section 101(56) of the U.S. Bankruptcy Code.
3. DISTRIBUTOR OBLIGATIONS
3.1 DISTRIBUTOR'S VALUE ADDED OFFERING. Notwithstanding anything to the
contrary in this Agreement, Distributor understands and agrees that during the
License Term, Distributor shall distribute the Licensed Software to Customers
only in conjunction and concurrently with a Value Added Offering and not on a
standalone basis; provided, however, that this requirement shall not apply to
Distributor's existing Customers or to Distributor's distribution of Updates to
the Licensed Software to an existing Customer who has licensed the Licensed
Software in connection with the Value Added Offering. The Value Added Offering
shall materially differentiate the Solution from the Licensed Software;
provided, however, that nothing contained in this Section or in this Agreement
shall in any way limit or restrict the freedom of Distributor to determine the
resale price for the Solution as set forth in Section 3.2.
3.2 DISTRIBUTOR'S PRICING OF THE SOLUTION. Distributor shall be free to
determine list pricing and any volume or other applicable discounts for the
Solution.
3.3 INSTALLATION AND TRAINING SERVICES. Distributor may be responsible for
conducting all activities required to install the Licensed Software at its
Customers' locations and may be responsible for providing training to such
Customers and any system integrators involved in such installation. All such
installation and training shall be conducted with the highest level of
professionalism and quality. It is understood that Distributor is not permitted
to conduct such activities or provide such training unless and until Distributor
and authorized representative of Siebel agree on the terms under which
Distributor will conduct such activities or provide such training. At
Distributor's request, Siebel shall provide to Distributor the Documentation and
Training Materials are ordered, provided that during the first sixth (6) months
of this Agreement, Distributor shall receive a ten percent (10%) discount off of
such list prices.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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3.4 MAINTENANCE AND SUPPORT SERVICES. Distributor shall provide Maintenance
and Support Services to all of its Customers of Licensed Software as set forth
in Sections 3.4(a) and 3.4(b) below only if distributor notifies Siebel within
twelve (12) months after the Effective Date of Distributor's election to
commence First-Line Support and Second-Line Support (such notification the
"Assumption of Support"). Distributor shall be obligated to make the Assumption
of Support unless Distributor reasonably determines that providing Maintenance
and Support, and subject to distributor's payment of the Maintenance Fees as set
forth in EXHIBIT A, Siebel will as a subcontractor of Distributor provide
First-Line Support, Second-Line Support and Third-Line Support to Customers.
After the Assumption of Support, distributor may elect to Require Customers to
provide their own First-Line Support; however, in no event will Siebel be
responsible for First-Line or Second-Line Support. Subject to Distributor's
payment of the Maintenance Fees set forth in EXHIBIT A, Siebel shall provide
Third-Line Support to Distributor in accordance with Siebel's then current
Maintenance and Support Services Policy. Distributor shall be responsible for
all support related to the Value Added Offering.
(a) FIRST-LINE SUPPORT. First-Line Support means direct technical
support of Licensed Software, including but not limited to (a) a direct response
to Customer and User inquiries concerning the performance, functionality or
operation of the Licensed Software, (b) a direct response to reported problems
or performance deficiencies with the Licensed Software, (c) a diagnosis of
problems or performance deficiencies of the Licensed Software, and (d) a
resolution of problems or performance deficiencies of the Licensed Software.
First Line Support includes the support described as "First Line Support" in
EXHIBIT B. First-Line Support shall include the provision of telephone and other
appropriate contact points so that Customers may contact distributor regarding
technical and support questions and other problems regarding use of the Licensed
Software. Distributor shall inform Customers that if, after using its reasonable
commercial efforts, the Customer is not able to answer a support question or to
correct a reported problem in the Licensed Software, the Customer may contact
distributor for Second-Line Support, as provided below.
(b) SECOND-LINE SUPPORT. Second-Line Support means web-based and
telephone and other support at least at the level of Second Line Support
described in Siebel's then current Maintenance and Support Services Policy. A
copy of Siebel's Maintenance Policy as of the date of this Agreement is set
forth in EXHIBIT B. Siebel reserves the right to alter such policies from time
to time, in its reasonable discretion, on ninety (90) days' prior notice to
Distributor. Distributor is hereby authorized to distribute to its Customers, as
a part of Second-Line Support, any and all Updates that Siebel provides
distributor.
(c) THIRD-LINE SUPPORT. In consideration for the payment of Siebel
Maintenance Fees set forth in EXHIBIT A, Siebel shall provide Distributor third
line support ("Third-Line Support") for the Licensed Software in accordance with
Siebel's then current Maintenance and Support Services Policy. This shall
include web-based and telephone support to respond to questions that are due
solely to the failure of the Licensed Software to perform in any material
respect the functions described in the Documentation when operated on a
Supported Platform. After the Assumption of Support, before requesting
Third-Line Support, Distributor shall use reasonable commercial efforts to
resolve support questions and to correct reported problems in the Licensed
Software and to ensure that the issue is not related to any other part of the
Solution.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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If Distributor requests Siebel to provide services at a customer site or at
Distributor, Distributor agrees to pay Siebel for such services in accordance
with Siebel's list prices for such services as of the date such services are
delivered and to reimburse Siebel for all its out-of-pocket expenses, including
travel and accommodations, in providing such services.
3.5 SIEBEL CERTIFICATION OF DISTRIBUTOR TECHNICAL SUPPORT STAFF. Unless
distributor does not make the Assumption of Support as provided in Section 3.4,
(i) Distributor shall hire and maintain sufficient technical support personnel
as are needed to support the Licensed Software and achieve the Customer
satisfaction levels required under Section 3.7; and (ii). Distributor shall hire
and maintain at all times during the term of this Agreement, at a minimum, two
technical support engineers who have successfully completed the following Siebel
training certification ("Siebel Certification Training"): (i) the Siebel
training program as described in Siebel's then current program description, (ii)
the required competency testing, and (iii) one week of additional training with
Siebel technical support engineers at the Siebel support center designated by
Siebel. Distributor will be responsible for all training fees and costs
associated with obtaining Siebel Certification Training and shall use its
reasonable efforts to ensure that such training is completed as soon as
practicable after the Assumption of Support. Distributor's support staff must be
fluent in English and all Customer languages spoken in the Territory.
3.6 DISTRIBUTOR MAINTENANCE REPORTING REQUIREMENTS. Distributor will
maintain proper records of Maintenance and Support Services provided to
Customers. Siebel may audit any such records to verify Distributor's performance
of its support obligations. On a monthly basis, Distributor will provide Siebel
a report to Siebel containing the following new customer information: (i)
Customer name, (ii) Customer hardware and software configurations, (iii)
Customer contact names, (iv) Customer contact information, including address,
telephone number, and email address and (v) term of Customer's Maintenance and
Support Services Agreement. Within thirty (30) days after the end of each
quarter, Distributor shall provide Siebel a report in a form specified by Siebel
showing in detail (i) the number of support calls received during quarterly
period with the associated severity level, (ii) the overall average response
time by severity level for such support calls, (iii) the overall average
resolution time by severity level for such support calls; and (iv) other
information reasonably requested by Siebel.
3.7 CUSTOMER SATISFACTION REQUIREMENT. Siebel may, at its discretion and
expense and in reasonable intervals, survey Customers to determine the level of
Customer satisfaction with the Maintenance and Support Services, if any, and
other services provided by Distributor. In order to minimize any inconvenience
to Customers, Siebel agrees to use reasonable efforts to conduct such surveys in
coordination with surveys or audits conducted by Distributor. If the results of
the survey indicate a level of dissatisfaction with Distributor's Customers
(e.g., a gap of more than 2 on a 10 point scale in any surveyed category where
the gap represents the difference between the importance level to the customer
and customer's satisfaction), then (i) Siebel will notify Distributor, and (ii)
the parties will work together to develop a improvement plan to improve Customer
satisfaction. Should Distributor fail to improve the level of Customer
satisfaction for the then current calendar quarter and the quarterly average of
the gap for any surveyed category is more than 2, Siebel may elect to
immediately terminate Distributor's right to continue to provide Maintenance and
Support Services to its Customers.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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3.8 SIEBEL TECHNICAL SERVICES AND PROFESSIONAL SERVICES Siebel shall
provide technical services to Distributor, subject to availability, as agreed to
from time to time by the parties, in accordance with Siebel's technical services
schedule in effect at the time such services are ordered (available upon
request). Siebel will provide professional services to Distributor pursuant to a
separate agreement between the parties as to the terms of the provision of such
services. It is understood that during the first six (6) months of this
agreement, such professional services will be provided at a discount (*) off of
Siebel's then current list price for such services.
3.9 CUSTOMER VISITS. With Distributor's prior written consent (such consent
not to be unreasonably withheld), Siebel may at its expense visit distributor's
Customers from time to time upon reasonable advance notice and with Customer's
approval, to stay abreast of customer requirements and to evaluate features for
potential future products. Distributor agrees to provide Siebel reasonable
assistance in arranging such visits with Customers. Siebel agrees to provide to
Distributor a summery of Customer information obtained during the course of such
visits to the Extent such information is pertinent to Distributor's obligations
under this Agreement.
3.10 DISTRIBUTOR WARRANTIES. Distributor represents and warrants that as of
the Effective Date and continuing throughout the License Term:
(a) Distributor will maintain the facilities, resources and
experienced personnel necessary (i) to market and distribute Licensed Software;
(ii) after the Assumption of Support, to perform the necessary installation,
training and maintenance services related to such Licensed Software; and (iii)
otherwise to fulfill its obligations under this Agreement. In addition,
Distributor will maintain the facilities, resources and experienced personnel
necessary to perform the installation and training services agreed to by
Distributor with a Customer.
(b) Distributor is not precluded by any existing arrangement,
contractual or otherwise, from entering into this Agreement and performing
hereunder;
(c) Distributor will make no representations or warranties related
to the Licensed Software in excess of Siebel's representations or warranties
contained in Section 10 of this Agreement.
(d) Distributor has not relied on any promises or representations
other than those promises or representations expressly made in writing in this
Agreement;
(e) If Distributor becomes aware of any actual or suspected
unauthorized use, copying or disclosure of the Licensed Software or Ancillary
Programs, Distributor will promptly notify Siebel and will assist Siebel, at
Siebel's expense and request, in the investigation and prosecution of such
unauthorized use, copying or disclosure; and
(f) Distributor has the full right, power and authority to enter
into this Agreement and to carry out its obligations hereunder, and there are no
impediments known to Distributor that would prevent Distributor compliance with
all the terms of this Agreement.
3.11 DISTRIBUTOR INDEMNITY. Distributor will indemnify Siebel for, and hold
Siebel harmless from, any loss, expense, damages, claims, demands, or liability
arising form any claim, suit,
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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action or demand resulting from: (a) the gross negligence or willful misconduct
of Distributor or its representatives; (b) the breach of any terms of this
Agreement; (c) the use or distribution of the Licensed Software and Ancillary
Programs by Distributor except for claims which arise directly from or relate
directly to breaches of Siebel's obligations under this Agreement or fall within
Siebel's indemnification obligations under this Agreement, including but not
limited to Siebel's warranties with respect to the Licensed Software; or (d) any
claim related to the Value Added Offering.
3.11A SIEBEL INDEMNITY. Subject to the limitation of liability set forth in
Section 11 ("Limitation of Liability"), Siebel will indemnify Distributor for,
and hold Distributor harmless from, any loss, expense, damages, claims, demands,
or liability arising from any claim, suit, action or demand resulting from: (a)
the breach of Section 10 ("Siebel Warranties") or 13.1 ("Nondisclosure"); or (b)
the use of the Licensed Software and Ancillary Programs by any Customer of
Distributor to the extent such claims arise directly from or relate directly to
breaches of Siebel's obligations under this Agreement or fall within Siebel's
indemnification obligations under this Agreement, including but not limited to
Siebel's warranties with respect to the Licensed Software.
3.12 MARKETING AND SALES EFFORTS. Distributor and Siebel shall each use
reasonable efforts to promote and market the Licensed Software to Customers and
potential Customers in order to maximize the licensing and distribution of the
Licensed Software to Customers. Such marketing efforts shall include, but not be
limited to the following: preparation and presentation of an annual Marketing
and Sales Plan with all marketing and sales related expenditures detailed and a
ROI (return on investment) analysis to justify all such expenditure; Such annual
Marketing and Sales Plan shall be presented to Siebel within 30 days from the
Effective Date (and each year thereafter on the anniversary date of the
Effective Date) for its review and approval (such approval not to be
unreasonably withheld or delayed); establishment of a marketing and sales force
to promote and distribute the Licensed Software; advertising the Licensed
Software in a commercially appropriate and reasonable manner; and promoting the
Licensed Software at seminars, trade shows and conferences. Distributor agrees
further that its marketing and advertising efforts with respect to the Licensed
Software will be of high quality and in no event of lesser quality as
Distributor's efforts with respect to Distributor's own software. Distributor
further agrees that it shall preserve the professional image and reputation of
Siebel and the Licensed Software. Within one hundred twenty (120) calendar days
from the Effective Date, Distributor agrees to appoint and train, to the
reasonable satisfaction of Siebel, sufficient sales persons and/or technical
support consultants as are needed to satisfy Distributor's obligation to use its
reasonable efforts to market and sell the Licensed Software. Distributor agrees
that its staff shall achieve a level of competence in the Licensed Software and
will participate in applicable certification programs that Siebel may establish.
Each party shall appoint, at its own expense, a channel manager to manage the
relationship described in this Agreement and to assist in addressing issues that
may arise. Each party shall use reasonable efforts to provide the other party
with qualified leads related to the products and services distributed by the
other party.
3.13 POLICY CHANGES. From time to time Siebel may institute new or revised
policies and procedures (i) regarding the distribution and licensing of the
Licensed Software, Updates, Documentation and Ancillary Programs (e.g.,
technical measures to reduce piracy, order
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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processing), and (ii) to ensure Siebel's intellectual property rights and other
rights (including without limitation the right to receive timely payment, right
to ensure appropriate levels of end user customer satisfaction) are fully
protected. Siebel will provide written notice of such policies and procedures to
Distributor, and Distributor agrees to implement such policies and procedures
within a reasonable time after such notice; provided however that if such
revised policies and procedures materially increase Distributor's costs, the
parties will discuss in good faith a reasonable alternative to Distributor's
implementation of such policies and procedures.
3.14 THIRD PARTY PERFORMANCE. Distributor agrees that none of its
obligations under this Agreement, including but not limited to its minimum
order, payment, warranty and indemnification obligations to Siebel, are
conditioned in any xxxx on any third party's performance or nonperformance of
its payment or other obligations to Distributor.
4. DELIVERY
Within ten (10) days of the Effective Date, Siebel shall deliver to Distributor
master copies on diskette or CD-ROM of the Licensed software and Ancillary
Programs. Siebel will also deliver Documentation to Distributor as set forth in
EXHIBIT C. Siebel will promptly provide Distributor will master copies on
diskette or CD-ROM of any Updates Siebel makes available, and Distributor agrees
that it will incorporate such Updates into the Licensed Software which it
provide to new Customers promptly as possible, and in no event more than sixty
(60) days after Distributor's receipt of each such Update. From time to time
during the License Term, Siebel will, upon request and subject to availability,
provide Distributor a reasonable number of copies of Marketing Materials for
distribution to potential customers.
5. RESTRICTIONS REGARDING THE LICENSED SOFTWARE
5.1 LICENSE RESTRICTIONS. Distributor acknowledges that, except as
explicitly stated in this Agreement, the Agreement does not grant Distributor
any right or license to the Licensed Software or Ancillary Programs or any
proprietary rights therein, and no license or other rights shall be created by
implication or estoppel. In particular, but without limiting the generality of
the foregoing, no right or license in or to source code for the Licensed
Software or Ancillary Programs is granted hereunder. distributor covenants that
it shall not (i) sublicense or otherwise permit access or use of the Licensed
Software or Ancillary Programs on a commercial time-sharing, lease, rental, or
service bureau basis; (ii) allow or otherwise permit access or use of the
Programs or Ancillary Programs on a commercial time-sharing, lease, rental, or
service bureau basis; or (iii) allow an End User to reassign or otherwise
transfer the Licensed Software to a third party, provided, however, that the End
User may assign the Licensed Software (and the Ender User License Agreement) in
connection with a merger, acquisition or sale of all or substantially all of its
assets unless the surviving entity is a direct competitor of Siebel. Distributor
covenants that it shall not prepare, and it shall not permit any others to
prepare, any derivative works of the Licensed Software or Ancillary Programs, or
otherwise modify or revise any materials received from Siebel. Distributor
covenants that it shall not use, reproduce, distribute or sell the Licensed
Software or Ancillary Programs in any manner or for any purpose except as
specifically permitted under this Agreement. Notwithstanding the foregoing, it
is
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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understood and agreed that for financing purposes only, an Customer may lease
the License Software through a third party leasing company at Customer's
expense.
5.2 PROHIBITION ON DECOMPILING. Distributor acknowledges that the Licensed
Software and Ancillary Programs contain the valuable information on Siebel and
its licensors, and Distributor agrees not to cause or permit the modification,
reverse engineering, translation, disassembly, or decompilation of, or otherwise
to attempt to derive the source code of the Licensed Soft3ware or Ancillary
Programs, whether in whole or in part; provided that however that if required
under applicable law, upon Customers request, Siebel shall provide information
necessary for Customer to achieve interoperability between the Licensed Software
and other software for a nominal administrative charge.
5.3 PROPRIETARY NOTICES. In order to protect Siebel's and its licensors'
copyright and other ownership interests in the Licensed Software and Ancillary
Programs, Distributor agrees that as a condition of its rights hereunder, each
copy of the Licensed Software or Ancillary Programs reproduced by or on behalf
of Distributor shall contain the same proprietary notices on the media, within
the code and on the Documentation which appear on the media or within the code
of the Licensed Software or Ancillary Programs, or on the Documentation
delivered by Siebel to Distributor and as otherwise reasonably required by
Siebel. Distributor will not remove or obscure any proprietary notices from any
Documentation, Training Materials, or Marketing Materials provided by Siebel.
5.4 CHANNEL MANAGEMENT. Distributor and Siebel will meet at least monthly
to jointly review the list of qualified sales opportunities that Distributor is
pursuing to identify any potential sales channel conflicts and determine the
appropriate party to handle the sales opportunity. In the event of a
disagreement with respect to a particular sales opportunity, the resolution of
which party should be responsible for handling the sales opportunity will be
escalated within Distributor's and Siebel's respective organizations for
resolution after consideration of all relevant factors including the best
interests of the prospective customer and the resources previously allocated to
the sales opportunity by both parties. As soon as reasonably possible after
signature of this Agreement, the parties will meet to jointly establish
procedures for managing sales channel conflicts.
5.5 RESERVED TERRITORY. Notwithstanding anything to the contrary contained
in this Agreement, Siebel retains the exclusive right to distribute the Licensed
Software to the companies listed in EXHIBIT E. If Distributor wishes to license,
distribute, show or demonstrate the Licensed software to any company listed on
EXHIBIT E, Distributor shall notify Siebel in writing and obtain Siebel's prior
written approval.
5.6 COMPETITIVE ACTIVITY. (*)
6. PAYMENT
6.1 SUBLICENSE FEES. For each copy of all or any portion of the Licensed
software distributed to, produced, deployed made available to or otherwise used
by a Customer pursuant to an agreement or understanding with Distributor,
Distributor shall pay the Sublicense Fees set forth
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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in EXHIBIT A. Distributor, shall report any distribution, reproduction or use of
the Licensed software by an Customer as set forth in Section 6.5. In addition,
distributor shall make the payments to Siebel for Distributor's Minimum Payments
set forth in EXHIBIT A.
6.2 DOCUMENTATION AND TRAINING MATERIALS. For each copy of Documentation or
Training Materials provided to Distributor by Siebel, Distributor shall pay
Siebel's list prices in effect as of the date such documentation and Training
Materials are ordered, provided that during the first six (6) months of this
Agreement, (*)
6.3 DISTRIBUTOR MAINTENANCE FEES. Distributor shall pay Siebel the Siebel
Maintenance Fees for Third-Line Support set forth in EXHIBIT A. Such Maintenance
Fees (*) following the end of the quarter in which the related Sublicense Fee
accrued.
6.4 PAYMENT TERMS. Sublicense Fees (*) which they accrued, accompanied by
the report set forth in Section 6.5. Except as otherwise provided in this
Agreement, all fees or other charges shall be payable thirty (30) days from
receipt of the applicable invoice. If any provision of this Agreement does not
allow Distributor to recognize all license fee revenue when an End User License
Agreement is signed and the Licensed Software is shipped to Customer, at
Distributor's request, Distributor and Siebel will agree to discuss in good
faith amending this Agreement in such reasonable manner as required to allow
Distributor to recognize such revenue.
6.5 REPORTS AND PAYMENTS. Within five (5) business days of the completion
of each Customer transaction, Distributor shall submit to Siebel for each
transaction a copy of the Order Form, the current version of which is set forth
at EXHIBIT G. Such document shall show in detail (i) the number of copies or
units of Licensed Software reproduced, distributed, deployed or otherwise used
by a Customer of Distributor during the previous month, (ii) the amount owing
Siebel therefor including the Distributor Sublicense Fees and Distributor
Maintenance Fees, and (iii) the names and locations of the Customers. Within
thirty (30) days before the end of each quarter, Distributor will use its
reasonable efforts to provide Siebel a non-binding forecast of Sublicense Fees
and other fees to be due to Siebel for that quarter.
6.6 TAXES. The specified amounts listed in this Agreement do not include
taxes, duties or fees; if Siebel is required by the tax authorities to pay (i)
sales, use, property, value-added, or other taxes, (ii) any customs or other
duties, or (iii) any import, warehouse or other fees associated with the
importation or delivery of the Licensed Software, Documentation, or Training.
Materials or based on the rights and licenses granted by Siebel to Distributor
in this Agreement or on Distributor's use of Licensed Software, Documentation or
Training Materials or any services provided by Siebel to Distributor hereunder,
then such taxes, duties or fees shall be billed to and paid by Distributor. If
Distributor is permitted to declare any such taxes, Distributor shall declare
and
6.7 RECORDS AND INSPECTION RIGHTS. Distributor will keep and maintain
proper records and books of account relating to its distribution and
sublicensing of Licensed Software to Customers. Siebel may have an independent
audit firm inspect and audit on its behalf, any such records to verify
Distributor's compliance with its payment obligations hereunder. Any such
inspection will be conducted during regular business hours, upon at least five
(5) business days advance
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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written notice, at Distributor's offices in a manner that does not unreasonably
interfere with Distributor's business activities. The person or entity
conducting such audit must execute an appropriate confidentiality agreement with
respect to Distributor's non-public or proprietary information. Such inspection
shall be at Siebel's cost and expense, unless the inspection reveals that
Distributor underpaid the amount actually owing by ten percent (10%) or more, in
which case Distributor shall pay such reasonable out of pocket costs and
expenses. Such audits may be conducted no more than once in any twelve (12)
month period. In the event that Siebel wishes to inspect such books and records,
Distributor will make all relevant records available. Distributor shall use
reasonable commercial efforts to compel its Customers to permit Siebel to
inspect the records of such Customer as provided in this Section, the cost of
such inspections to be home equally by the parties and the parties agree to
discuss in good faith necessity of any such inspection. Distributor shall owe
simple interest at the rate of ten percent (10%) per year on any past due
balances pursuant to this Agreement.
7. LIMITED RIGHT TO USE TRADEMARKS
7.1 GRANT OF LICENSE. Jsiebel hereby grants to Distributor under the terms
set forth in this Section 7, a non-exclusive license to use the trademarks and
trade names set forth in EXHIBIT D (the "Trademarks"), solely in connection with
the marketing, distribution and support of the Licensed Software and only in the
manner prescribed in this Agreement. Distributor agrees that it will use the
Marketing, distribution and support of the Licensed Software. Distributor agrees
that the Licensed Software and any related services will be marketed under the
Siebel brand name and Trademarks in the United States. Any other proposed use of
the Trademarks must be approved in writing by Siebel in advance of such use.
7.2 FORM OF USE. Distributor shall only use the Trademarks in the form(s)
approved in writing by Siebel, including the (TM) symbol (and, upon registration
of any registered trademark, the (R) symbol), and an indication that Siebel is
the owner of the Trademarks.
7.3 NO USE OF IDENTICAL OR SIMILAR NAMES. Distributor shall not use as its
company name or a component thereof or on other products a xxxx or name
identical with or confusingly similar to the Trademarks.
7.4 PRIOR SUBMISSION OF SAMPLES. Distributor shall submit to Siebel samples
of advertising or other items bearing the Trademarks prior to the use of such
advertising or other items. Siebel shall have the right to make reasonable
objections to any such sample within thirty (30) days of its submission on the
grounds that Siebel believes in good faith that the use of such advertising or
other items by Distributor will be damaging to the recognition value or
reputation for quality associated with the Trademarks or that the advertising or
other items do not meet the standards of quality required by Siebel. In the
event of such an objection, Distributor shall modify the advertising or other
items in accordance with the objection of Siebel prior to the use of such
advertising or other items.
7.5 LOCAL REGISTRATION OF TRADEMARKS; NO OBJECTIONS TO VALIDITY. Siebel
will, in its sole discretion, retain the exclusive right to register the
Trademarks. Distributor agrees not to raise or
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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cause to be raised any questions concerning or objections to the validity of the
Trademarks or to the respective rights of Siebel.
7.6 NOTIFICATION OF ADVERSE USE. Distributor shall promptly notify Siebel
of any known adverse use by a third party of any of the Trademarks or of a xxxx
or name confusingly similar to any of the Trademarks and agrees to take no
action of any kind with respect thereto except with the prior written
authorization of Siebel. Distributor further agrees to provide full cooperation
with any legal or equitable action by Siebel to protect its rights, title and
interest in the Trademarks, provided that Siebel reimburses Distributor for the
reasonable out of pocket expenses of such cooperation.
7.7 INFRINGEMENT PROCEEDINGS. In the event of infringement of the
Trademarks by a third party, Siebel shall have the sole right to bring
proceedings (including notifications to the Customs Department objecting to the
importation of infringing goods) against the infringing party and to retain any
damages recovered in such proceedings. Distributor shall cooperate with Siebel
in the prosecution of any such infringement proceedings, provided that Siebel
reimburses Distributor for the reasonable out of pocket expenses of such
cooperation. Distributor shall promptly notify Siebel in writing of any such
known proceeding and shall provide complete authority, information and
assistance to Siebel in connection with such proceeding, provided that Siebel
reimburses Distributor for the reasonable out of pocket expenses of such
assistance. Siebel shall have the sole and exclusive authority and obligation to
defend and/or settle any proceeding with respect to the Trademarks.
7.8 LOGO LICENSE RIGHTS. Distributor agrees to the terms of the Logo
License Addendum set FORTH IN EXHIBIT H hereto as well as the terms of the Logo
Usage Guidelines, as such guidelines may be promulgated by Siebel from time to
time in its sole discretion ("Logo Usage Guidelines"). It is understood that in
the event that Siebel changes such guidelines in a manner that is materially
adverse to the promotion and marketing of the Licensed Software under this
Agreement, such changes shall not be applicable to Distributor.
8. OWNERSHIP AND PROPRIETARY RIGHTS
Siebel and its suppliers shall retain all title, copyright and other proprietary
rights in and to the Licensed Software, except as expressly set forth in Section
2.1(c) with respect to Customer Object Definitions. Distributor does not acquire
any rights, express or implied, in the Licensed Software, other than those
specified in this Agreement. In the event that Distributor makes suggestions to
Siebel regarding new features, functionality or performance that Siebel adopts
for the Licensed Software, such new features, functionality or performance shall
become the sole and exclusive property of Siebel, free from any restriction
imposed upon Siebel by the provisions of Section 13.1.
In the event Siebel requests Distributor to furnish Siebel with engineering or
other technical resources in connection with future development work for the
Licensed Software (above and beyond suggestions to Siebel regarding new
features, functionality or performance), Distributor's development role,
compensation and ownership rights, if any, for the provision of such services
will be addressed in a separate written agreement. In the event Distributor: (i)
has
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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independently developed or acquired rights to products or other works which
it believes may be complementary to the Licensed Software, and (ii) desires
Siebel to evaluate the usefulness of such products or other works, the parties
shall enter into an evaluation and non-disclosure agreement before distributor
makes any disclosures of proprietary or confidential information to Siebel in
connection with such products or other works.
9. INFRINGEMENT INDEMNITY
9.1 INTELLECTUAL PROPERTY INFRINGEMENT. If a third party makes a claim
against Customer or Distributor that the Licensed Software or Updates directly
infringes any U.S. or Canadian patent or any copyright, trade secret or
trademark ("IP Claim"); Siebel will defend Distributor or Customer against the
IP Claim (including payment of reasonable legal fees as incurred to defend
Customer and Distributor) and pay all costs, damages and expenses (including
reasonable legal fees) finally awarded against Customer by a court of competent
jurisdiction or agreed to in a written settlement agreement signed by Siebel
arising out of such IP Cla9im;; provided that: (i) Distributor promptly notifies
Siebel in writing no later than sixty (60) days after Distributor's receipt of
notification of a potential claim; (ii) Siebel may assume sole control of the
defense of such claim and all related settlement negotiations; and (iii)
Distributor provides Siebel, at Siebel's request and expense, with the
assistance, information and authority necessary to perform Siebel's obligations
under this Section, provided that Siebel reimburses Distributor for the
reasonable out of pocket expenses of that assistance. Notwithstanding the
foregoing, Siebel shall have no liability for any claim of infringement to the
extent that the claim is based on (a) the use of a superseded or altered release
of Licensed Software if the infringement would have been avoided by the use of a
current unaltered release of the Licensed Software, which Siebel provided to
Distributor, (b) the modification of the Licensed Software other than by Siebel,
or (c) the use of the Licensed Software other than in accordance with the
Documentation.
If, due to an IP Claim, (i) the Licensed Software is held by a court of
competent jurisdiction or are believed to infringe, or (ii) Distributor receives
a valid court order enjoining Distributor from using the Licensed Software,
Siebel shall in its reasonable judgment, and at its expense, (a) replace or
modify the Licensed software to be non-infringing and with substantially similar
functionality; (b) obtain for distributor and/or its Customers a license to
continue using the Licensed Software; or (c) if Siebel cannot reasonably obtain
the remedies in (a) or (b), terminate the license for the infringing Licensed
Software and any other portions of the Licensed Software that become
substantially unusable because of the infringement and refund the license fees
paid for such Licensed Software upon its return by Distributor. This Section 9.1
states Siebel's entire liability and distributor's exclusive remedy for any
claim of infringement by the Licensed Software or Updates.
9.2 INTELLECTUAL PROPERTY INFRINGEMENT FOR ANCILLARY PROGRAMS. If a third
party makes a claim against Distributor or Customer that the Ancillary Programs
infringe any U.S. or Canadian patent or any copyright, trade secret or trademark
("IP Claim"); Siebel will defend Distributor or Customer against the IP Claim
and pay all costs, damages and expenses (including reasonable legal fees)
incurred by Distributor (for the avoidance of doubt, such costs, damages and
expenses shall not include any indirect, incidental, special or consequential
loss or damage) or agreed to in a written settlement agreement signed by Siebel
arising out of such IP Claim; provided that:
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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(i) Distributor promptly notifies Siebel in writing no later than sixty (60)
days after Distributor's receipt of notification of a potential claim; (ii)
Siebel may assume sole control (acknowledging that Distributor may play an
active part in the proceedings, to the extent that such participation does not
affect Siebel's control of the defense) of the defense of such claim and all
related settlement negotiations; and (iii) Distributor provides Siebel, at
Siebel's request and expense, with the assistance, information and authority
necessary to perform Siebel's obligations under this Section. Notwithstanding
the foregoing, Siebel shall have no liability for any claim of infringement
based on (a) an Ancillary Program for which Siebel has not received a
contractual provision from its supplier covering the IP Claim (b) the use of an
Ancillary Program that has been replaced by Siebel if the infringement would
have been avoided by the use of such replacement program which Siebel provided
to Distributor, (c) the modification of a Ancillary Program if the infringement
would have been avoided by the use of an unmodified program, or (d) the use of
the Ancillary Programs other than in accordance with ' h the Documentation and
this Agreement if the infringement would have been avoided by the use of
Ancillary Programs or Documentation in accordance with this Agreement.
If, due to an IP Claim or the threat of an IP Claim, (i) any Ancillary Program
(regardless of whether Siebel has received a contractual provision from the
supplier of the Ancillary Program covering the IP Claim) is held by a court of
competent jurisdiction, or in Siebel's reasonable judgment may be held to
infringe by such a court, or (ii) Distributor receives a valid court order
enjoining Distributor from using the Ancillary Programs, or in Siebel's
reasonable judgment distributor may receive such an order, Siebel shall in its
reasonable adjustment, and at its expense, (a) replace or modify the Ancillary
Programs to be non-infringing; (b) obtain for distributor a license to continue
using the Ancillary Programs; or (c) if Siebel cannot reasonably obtain the
remedies in (a) or (b), terminate the customer's license to the infringing
Ancillary Programs and refund the license fees paid for those Programs whose
functionality is materially and adversely impacted by the termination of the
license to such Ancillary Program upon return by distributor. This Section 9.1
states Siebel's entire liability and Distributors' exclusive remedy for any
claim of infringement regarding Ancillary Program.
10. LIMITED WARRANTIES AND DISCLAIMERS
10.1 LIMITED PROGRAM WARRANTY. Siebel warrants for a period of one (1) year
from the date on which the copy of the Licensed software is first delivered to
Distributor hereunder, that the unmodified version of the Licensed Software will
perform in all material respects the functions described in the Documentation
when operated on a Supported Platform. The parties agree and acknowledge that
the foregoing warranty only applies to Licensed Software first delivered to
Distributor or to a Customer and not to any Updates subsequently provided to
Distributor or such Customer. In the event of a breach of this warranty,
Distributor's sole and exclusive remedy and Siebel's sole liability shall be for
Siebel to use its commercially reasonable efforts to correct or provide a
workaround for reproducible errors that cause breach of this warranty, or if
Siebel is unable to make the Licensed Software operate as warranted within a
reasonable period of time considering the severity of the error and its impact
of the Distributor, Distributor shall be entitled to recover the fees paid to
Siebel for the applicable Licensed Software.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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10.2 LIMITED MEDIA WARRANTY. Siebel warrants that the tapes, diskettes or
other media upon which the master copy of the Licensed Software (or Ancillary
Programs to the extent such programs are contained on the same media as the
Licensed Software) are delivered by Siebel to Distributor to be free of defects
in materials and workmanship under normal use for one hundred eighty (180) days
from the date of delivery by Siebel. In the event of a breach of this warranty,
Distributor's sole and exclusive remedy and Siebel's sole liability shall be the
replacement of the defective media, provided that Distributor shall acquire an
RMA number from Siebel before returning defective media to Siebel.
10.3 LIMITED SERVICES WARRANTY. Siebel warrants that any services contracted
to be performed by Siebel pursuant to this Agreement shall be performed in a
professional and workmanlike manner consistent with generally accepted industry
standards. This warranty shall be valid for ninety (90) days after performance
of service. In the event of a breach of this warranty, Distributor's sole and
exclusive remedy and Siebel's sole liability shall be the reperformance of the
services, or if Siebel is unable to perform the services as warranted,
Distributor shall be entitled to recover the fees paid to Siebel for the
unsatisfactory services.
10.4 ANTI-VIRUS WARRANTY. Siebel represents and warrants that to the best of
its knowledge after employing reasonable technical means to detect computer
viruses, the Licensed Software does not contain any undocumented lockout
devices, timers, time bombs, virus or other computer software code, routines or
hardware components (other than as set forth in the Documentation) designed to
disable, damage, impair, or erase the Licensed Software or other software or
data. In the event of a breach of this warranty, Distributor's sole and
exclusive remedy and Siebel's sole liability shall be to immediately replace all
copies of the affected Licensed Software.
10.5 ANCILLARY PROGRAM WARRANTIES. Siebel assigns to Distributor and
Distributor shall have the benefit of any and all third party warranties,
service agreements and infringement indemnities available to end users of the
Ancillary Programs; provided, however, that Distributor's sole remedy for breach
of any such warranty, indemnification, service agreement, or other rights and
causes of action shall be against the third party offering such rights and of
not against Siebel. In the event that an Ancillary Program causes the Licensed
Software to fail to perform in all material respects the functions described in
the Documentation when operated on a Supported Platform, Siebel will use
commercially reasonable efforts to provide Distributor with a workaround or fix
pursuant to EXHIBIT B where such workaround or fix may include replacing the
Ancillary Program with a replacement Ancillary Program having substantially
equivalent functionality at no additional charge.
10.6 YEAR 2000 WARRANTY. Siebel warrants that the Licensed Software, as
provided by Siebel, is capable of processing, recording, storing and presenting
data containing four-digit years after December 31, 1999 in substantially the
same manner and with substantially the same functionality as before January 1,
2000. Siebel assumes no responsibilities or obligations to cause third-party
products or services, including but not limited to the Value Added Offering, to
function with the Licensed software. Siebel will not be in breach of this
warranty for any failure of the Licensed Software to correctly create or process
date-related data if such failure results from the inability of any software,
hardware, or systems of Distributor or Customer or any other third party
(including any underlying database engines, operating systems, and related
drivers)
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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either to correctly create or process date related data or to create or process
such date-related data in a manner consistent with the method in which the
Licensed Software create or process date-related data. In the vent of a breach
of this warranty, Distributor's sole and exclusive remedy and Siebel's sole
liability shall be to use its commercially reasonable efforts to correct or
provide a workaround for reproducible errors in the Licensed Software that cause
breach of this warranty, or if Siebel is unable to make the Licensed software
operate as warranted within a reasonable time considering the severity of the
error and its impact on the distributor, Distributor shall be entitled to return
the affected Licensed Software to Siebel and recover the sublicense fees paid to
Siebel for such Licensed Software.
10.6A MOST CURRENT RELEASE. Siebel warrants that the Licensed software is the
most current release of such software as of the Effective Date.
10.7 DISCLAIMERS. Distributor must report in writing (with a written notice
to Siebel as set forth in Section 13.3) any breach of the warranties contained
in this Section 10 during the relevant warranty period. Subject to Siebel's
obligations under Section 10.1, Siebel does not warrant that the Licensed
Software will meet Distributor's or any Customer's requirements, that the
Licensed software will operate in the combinations which Distributor or any
Customer may select for use, that the operation of the Licensed Software will be
uninterrupted or defect-free, or that all defects will be corrected. Siebel
shall have no Year 2000-related liabilities for any products or services except
as expressly stated in this Agreement. Pre-Production Programs, limited releases
of Licensed Software, Training Materials, and computer-based training products
are distributed "AS IS." THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL
OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING WITHOUT
LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
11. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL
OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF
PROFITS, DATA OR USE, INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER IN
AN ACTION IN CONTRACT OR TORT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES except that in the event Distributor makes
unauthorized copies of the Licensed Software , Siebel shall be entitled to
recover the full amount of any Sublicense Fees that would relate to such copies.
Neither party shall seek or be liable for punitive or exemplary damages.
Except for Siebel's liability under Section 9 and 13.1, Siebel's aggregate and
cumulative liability for damages hereunder shall in no event exceed the amount
of fees paid by Distributor under this Agreement, and if such damages relate to
Distributors use of the Licensed Software or services, such liability shall be
limited to fees paid for the relevant Licensed Software or services giving rise
to the liability. Except for any breach of its obligations under Sections 2, 5,
, 7 and 13.1, or its obligations under Section 3.10 or 3.11, Distributors
aggregate and cumulative liability for damages hereunder shall in no event
exceed the amount of fees paid by Distributor under this Agreement.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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12. TERM AND TERMINATION
12.1 TERM. This Agreement shall commence on the Effective Date and shall
continue in force through the Initial Term, as defined in EXHIBIT A, unless
sooner terminated as provided in this Agreement. This Agreement may be extended
after the Initial Term for one (1) year terms by mutual written agreement of the
parties. The parties agree to discuss such extensions in good faith at the end
of each of the first and second years of this Agreement; provided, however, that
Siebel shall have no obligation to renew or extend the term of the Agreement,
and no payments, liabilities or damages shall be due distributor, or shall be
imposed upon Siebel, for its decision to terminate or not to renew the
Agreement. It is understood that in the event that a party merges or is
otherwise combined into a successor corporation that is a direct competitor of
the other party, this Agreement will terminate upon such event.
12.2 TERMINATION FOR CAUSE. Either party may terminate this Agreement, by
written notice to the other party: (a) upon the material failure of the other
party to observe, keep or perform any of the covenants, terms or conditions
herein (including the failure to pay sums owed to the other party when due), if
such default continues for thirty (30) days after written notice by the other
party, (b) upon the institution by or against either party of insolvency,
receivership or bankruptcy proceedings or any other proceedings for the
settlement of its debts, (c) upon either party's assignment for the benefit of
creditors, (d) if all or substantially all of the assets of a party are acquired
by a direct competitor of the other party, or (e) upon either party's
dissolution or ceasing to do business.
12.3 EFFECT OF TERMINATION. Upon expiration or termination of this
Agreement: (a) all licenses and rights granted to the parties shall terminate,
except as set forth below or in Section 12.5; (b) each party shall refrain from
representing themselves as a party to this Agreement; (c) any Customer
sublicenses previously granted hereunder will not be affected; and (d) any other
rights of either party which may have accrued up to the date of termination
shall not be affected. Distributor shall be free to continue providing support
to its Customers who are under contract with Distributor for such support
following a termination provided that (i) Siebel shall not be obligated to
provide Distributor any Updates or Software Maintenance and Support Services to
Distributor under this Agreement and (ii) Siebel and its third party partners
are not restricted from providing Updates or other maintenance and support
directly to such customers.
12.4 LIMITATION OF LIABILITY ON TERMINATION. Notwithstanding the foregoing,
upon expiration or lawful termination, neither party will be liable to the other
party, because of such termination, for compensation (except for accrued
compensation), reimbursement or damages on account of the loss of prospective
profits or anticipated sales or on account of expenditures, inventory,
investments, leases or commitments in connection with the business or goodwill
of Siebel or Distributor.
12.5 DISCONTINUATION OF LICENSED SOFTWARE, DOCUMENTATION, TRAINING
MATERIALS, MARKETING MATERIALS Availability. When Siebel reasonably determines
that the market demand or other business factors for any Licensed Software,
Documentation, Training Materials or Marketing Materials no longer warrants
continued availability to end users, Siebel may at its reasonable discretion and
without liability to Distributor, remove such Licensed Software,
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
19
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Documentation, Training Materials or Marketing Materials from general
availability in which case Distributor shall discontinue all marketing and
distribution of such Licensed Software, Documentation, Training Materials,
Marketing Materials within one hundred eighty (180) days of Siebel's
notification to discontinue general availability for such Licensed Software,
Documentation, Training Materials or Marketing Materials.
12.6 SURVIVAL. Sections 3.11 ("Distributor Indemnity"), 5.2 ("Prohibition on
Decompiling"), 6 ("Payments"), 7.7 ("Infringement Proceedings"), 8 ("Ownership
and Proprietary Rights"), 9 ("Infringement Indemnity"), 11 ("Limitation of
Liability"), the third sentence of Section 12.1 ("Term"), 12.3 ("Effects of
Termination"), 12.6 ("Survival") and 13 ("General') shall survive the
termination of this Agreement.
13. GENERAL
13.1 NONDISCLOSURE. Each party may have access to information that is
confidential to the other party ("Confidential Information"). Siebel's
Confidential Information shall include, but not be limited to, the Licensed
Software, Documentation, Training Materials, Ancillary Programs, formulas,
methods, know how, processes, designs, new products, developmental work,
marketing requirements, marketing plans, customer names, prospective customer
names, the terms and pricing under this Agreement, and all information clearly
identified in writing at the time of disclosure as confidential. Distributors
Confidential Information shall include, but not be limited to, its software
programs, formulas, methods, know-how, processes, designs, new products,
developmental work, marketing requirements, marketing plans, customer names,
prospective customer names, and all information clearly identified in writing at
the time of disclosure as confidential. Confidential information includes all
information received from third parties that either party is obligated to treat
as confidential and oral information that is identified by either party as
confidential.
A party's Confidential Information shall not include information that (i) is or
becomes a part of the public domain through no act or omission of the other
party; (ii) was in the other party's lawful possession prior to the disclosure
and had not been obtained by the other party either directly or indirectly from
the disclosing party; (iii) is lawfully disclosed to the other party by a third
party without use of or reference to the other party's Confidential Information.
In addition, this Section 13.1 will not be construed to prohibit disclosure of
Confidential Information to the extent that such disclosure is required to be
disclosed by law or valid order of a court or other governmental authority;
provided, however, that the responding party shall first have given notice to
the other party and shall have made a reasonable effort to obtain protective
order requiring that the Confidential Information so disclosed by used only for
the purposes for which the order was issued.
The parties agree, unless required by law, not to make each other's Confidential
Information available in any form to any third party (except that Distributor
may disclose Siebel's Confidential Information to Customers provided that such
disclosure is pursuant to a written nondisclosure agreement at least as
protective of Siebel's Confidential Information as this Section 13.1) or to use
each other's Confidential Information for any purpose other than in the
performance of this Agreement. Distributor shall not disclose the results of any
performance
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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tests of the Licensed Software to any third party without Siebel's prior written
approval. Each party agrees to take all reasonable steps to ensure agents in
breach of this Agreement. The parties agree to hold each other's Confidential
Information in confidence during the term of this Agreement and for a period of
three (3) years thereafter; provided, however, that with respect to source code,
the Siebel Data Model Reference Manual, the Siebel Data Mart Data Model
Reference, and other highly sensitive confidential information clearly
identified as such at the time of disclosure by either party, the nondisclosure
obligations set forth herein shall continue indefinitely. Each party's
additional obligations regarding the Siebel Data Model Reference Manual and
Siebel Data Mart Data Model Reference are set forth in EXHIBIT C. Each party
acknowledges and agrees that, due to the unique nature of Confidential
Information, there can be no adequate remedy at law for breach of this Section
13.1 and that such breach would cause irreparable harm to the non-breaching
party; therefore, the non-breaching party shall be entitled to seek immediate
injunctive relief, in addition to whatever remedies it might have at law or
under this Agreement. This Section 13.1 constitutes the entire understanding of
the parties and supersedes all prior or contemporaneous agreements,
representations or negotiations, whether oral or written, with respect to
Confidential Information.
13.2 GOVERNING LAW. This Agreement shall be governed in all respects by the
laws of the United States of America and the State of California. The parties
agree that the United Nations Convention on Contracts for the International Sale
of Goods is specifically excluded from application to this Agreement.
13.3 NOTICES. All notices required to be sent hereunder shall be in writing
and shall be deemed to have been given upon (i) the date sent by confirmed
facsimile, (ii) on the date it was delivered by courier, or (iii) if by
certified mail return receipt requested, on the date received, to the addresses
set forth above and to the attention of the signatory of this Agreement or to
such other address or individual as the parties may specify from time to time by
written notice to the other party.
13.4 DELIVERY. All materials provided by Siebel hereunder shall be delivered
to Distributor on a F.O.B. Siebel's San Francisco Bay Area basis for
destinations within the United States, or on a FCA (Incoterms 1990) Siebel's San
Francisco Bay Area Headquarters (or the address of Siebel's designee) basis for
destinations outside the United States; at which point title to the carrier
media and risk of loss or damage to the materials shall be transferred from
Siebel to Distributor. Nothing in this Section shall be deemed to transfer title
to, or provide Distributor with any rights in, the Licensed Software,
Documentation, or Training Materials, except as specifically provided in this
Agreement. If any materials are lost or damaged during transit from Siebel to
Distributor, Siebel will promptly replace such materials at no additional
charge.
13.5 INJUNCTIVE RELIEF. It is expressly agreed that a breach of Sections 2.1
or 13.1 of this Agreement by Distributor or Siebel may cause irreparable harm to
the non-breaching party and that a remedy at law would be inadequate.
Therefore, in addition to any and all remedies available at law, the
nonbreaching party will be entitled to seek an injunction or other equitable
remedies in all legal proceedings in the event of any threatened or actual
violation of any or all of the above provisions.
[Remainder of page intentionally left blank]
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
21
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13.6 RELATIONSHIP BETWEEN THE PARTIES. Siebel is an independent contractor;
nothing in this Agreement shall be construed to create a partnership, joint
venture or agency relationship between the parties.
13.7 FORCE MAJEURE. Neither party shall be liable hereunder by reason of any
failure or delay in the performance of its obligations hereunder (except for the
payment of money) on account of strikes, shortages, riots, insurrection, fires,
flood, storm, explosions, acts of God, war, governmental action, labor
conditions, earthquakes, material shortages, or any other cause which is beyond
the reasonable control of such party (a "Force Majeure Event"). Each party will
use reasonable efforts to minimize the duration of a Force Majeure Event to the
extent that it is able to do so.
13.8 WAIVER. The failure of either party to require performance by the other
party of any provision hereof shall not affect the full right to require such
performance at any time thereafter; nor shall the waiver by either party of a
breach of any provision hereof be taken or held to be a waiver of the provision
itself.
13.9 SEVERABILITY. In the event any provision of this Agreement is held to
be invalid or unenforceable, the remaining provisions of this Agreement will
remain in full force.
13.10 HEADINGS. The paragraph 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 paragraph, or in any way affect this
Agreement.
13.11 ASSIGNMENT. Neither this Agreement nor any rights or obligations of
either party hereunder may be assigned in whole or in party without the prior
written approval of the other party, which shall not be unreasonably withheld or
delayed, except that no consent shall be required in the event of an assignment
of this Agreement to a successor corporation by merger, sale of all or
substantially all of the assets or capital stock, provided that the successor
corporation (i) is not a direct competitor of the other party, and (ii) agrees
in writing to be bound by the terms of this Agreement.
13.12 COMPLIANCE WITH LAW AND REGULATIONS. Each party shall act in strict
compliance with all applicable laws, ordinances, regulations and other
requirements of any government authority pertaining to such party's activities
under the Agreement and shall provide, pay for, and keep in good standing all
permits, licenses or other consents necessary for such activities.
13.13 EXPORT CONTROL. The parties agree that the export of Licensed Software
is subject to the export control laws of the United States of America and each
party agrees to abide by all such export control laws and regulations. Without
limiting the generality of the foregoing, distributor expressly agrees that it
shall not, and shall cause its representatives to agree not to, export, directly
or indirectly, re-export, divert, or transfer the Licensed Software,
Documentation or any direct product thereof to any destination, company or
person restricted or prohibited by U.S. Export Controls.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
22
23
13.14 CONFIDENTIAL AGREEMENT. Neither party will disclose any terms or the
existence of this Agreement, except that the parties may issue a jointly
approved press release announcing Distributor's rights to distribute and market
the Licensed Software. Siebel shall have the right to use Distributor's name in
customer lists or promotional documents that incorporate such lists. The
confidentiality restrictions under this Section 13.14 shall not apply to the
extent that disclosure of this Agreement is required by applicable laws and
regulations. Either party may disclose this Agreement on a need to know basis to
legal counsel, auditors and other representatives and to lenders and prospective
purchasers of a party, provided that such recipients agree to maintain the
confidentiality of this Agreement by executing a written agreement at least as
restrictive as this Agreement governing such confidentiality and provided
further that such recipient is not a competitor of the other party unless the
other party gives prior written permission to disclose this Agreement to such
competitor, such permission not to be unreasonably withheld.
13.15 COUNTERPARTS AND EXCHANGES BY FAX. This Agreement may be executed
simultaneously in two (2) or more counterparts, each of which will be considered
an original, but all of which together will constitute one and the same
instrument. The exchange of a fully executed Agreement (in counterparts or
otherwise) by fax shall be sufficient to bind the parties to the terms and
conditions of this Agreement.
13.16 NOTICE OF RESTRICTED RIGHTS FOR U.S. GOVERNMENT SUBLICENSES. If
Distributor grants a sublicense to the United States Government, the Licensed
Software, Ancillary Programs and Documentation shall be considered "commercial
computer software," and Distributor shall place a notice provision, in addition
to the applicable copyright notices, on the Documentation and media label,
substantially similar to the following: "U.S. GOVERNMENT RESTRICTED RIGHTS.
Programs, Ancillary Programs and Documentation, delivered subject to the
Department of Defense Federal Acquisition Regulation Supplement, are 'commercial
computer software' as set forth in DEARS 227.7202, Commercial Computer Software
and Commercial Computer Software Documentation, and as such, any use,
duplication and disclosure of the Programs, Ancillary Programs and Documentation
shall be subject to the restrictions contained in the applicable Siebel license
agreement. All other use, duplication and disclosure of the Programs, Ancillary
Programs and Documentation by the U.S. Government shall be subject to the
applicable Siebel license agreement and the restrictions contained in subsection
(c) of FAR 52.227-19, Commercial Computer Software - Restricted Rights (June
1987), or FAR 52.227-14, Rights in General Data Alternative III (June 1987), as
applicable. Contractor/licensor is Siebel Systems, Inc., 0000 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxxx, XX 00000."
13.17 ENTIRE AGREEMENT. This Agreement, together with the attached exhibits
which are incorporated by reference, constitutes the complete agreement between
the parties pertaining to the subject matter hereof and supersedes all prior or
contemporaneous agreements or representations, written or oral, concerning the
subject matter of this Agreement and such exhibits. This Agreement may not be
modified or amended except in writing signed by a duly authorized representative
of each party. No other act, document, usage or custom shall be deemed to amend
or modify this Agreement.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives.
The Effective Date of this Agreement shall be March 22, 2000.
EXECUTED BY: XXXXXX ASSOCIATES, INC. DBA XXXXXX SOFTWARE
Signature: /s/ Xxx Xxxxxxxx
Name: Xxx Xxxxxxxx
Title: President/COO
Date: 3-22-00
EXECUTED BY: SIEBEL SYSTEMS, INC.
Signature: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President, Legal Affairs
Date: 3/22/00
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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EXHIBIT A
LICENSED SOFTWARE
1. FEES.
(a) SUBLICENSE FEES.
(i) SIEBEL WORKGROUPS EDITION Applications. During the term of the
Agreement, the Sublicense Fees for Siebel Workgroups Edition Licensed
Software shall be equal to "Siebel's List Price" (as defined below)
less a discount of (*) for every licensed User of the Licensed
Software.
(ii) SIEBEL ENTERPRISE EDITION APPLICATIONS. During the term of the
Agreement, the Sublicense Fees for Siebel Enterprise Applications shall
be equal to Siebel's List Price less a discount of (*) for every
licensed User of the Licensed Software.
(iii) SIEBEL OPPORTUNITIES. Notwithstanding subsections (i) and (ii)
above, if at the time Distributor enters into a transaction with a
Customer on the final Target List, (*)
"Siebel's List Price" shall mean the quantity-one En ser List Price per
Named User for the Licensed Software published by Siebel and effective
as of the date of Distributor's license agreement with the relevant
Customer.
The "Target List" shall mean a (*)
Sublicense Fees will accrue upon the earlier of (i) the delivery of the
Licensed Software to the Customer or (ii) the reproduction, deployment
or use of the Licensed Software by the Customer and shall be payable
quarterly as set forth in Section 6.4 of this Agreement.
(b) MINIMUM SUBLICENSE FEES. (*)
(c) MAINTENANCE FEES.
Siebel Workgroups Edition Licensed Software and Siebel Enterprise
Edition Licensed Software: During the term of the Agreement,
Distributor agrees to pay Siebel Maintenance Fees that shall be equal
(*) of Distributor's net license fees received from Customers per year,
but in no event will Distributor pay Siebel less than (*) of the
cumulative aggregate of the then current Siebel List Price of all
Licensed Software which Distributor has distributed to Customers from
the Effective Date during each twelve (12) month period of this
Agreement; provided however that until the Assumption of Support (as
defined in Section 3.4 of this Agreement) the minimum percentage for
Maintenance Fees as set forth above shall be (*), not (*).
It is understood that in the event that a Customer renews Maintenance
and Support Services after the first year of the End User License
Agreement with such Customer, Distributor shall pay to Siebel
Maintenance Fees for such Customer during such
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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Customer's renewal period. It is further understood that if a Customer
does not renew Maintenance and Support Services after the first year of
the End User License Agreement with such Customer, Distributor shall
not be obligated to pay to Siebel Maintenance Fees for such Customer
after the first year of such End User License Agreement; provided,
however, that in the event Customer chooses to reinstate Maintenance
and Support Services after its decision not to renew, Distributor shall
pay to Siebel Siebel's then standard reinstatement fee for such
Maintenance and Support Services.
Maintenance Fees will accrue upon the earlier of (i) the delivery of
the Licensed Software to the Customer or (ii) the reproduction,
deployment or use of the Licensed Software by the Customer. Distributor
shall pay any Maintenance Fees within thirty (30) days following the
end of the quarter in which the related Sublicense Fee accrued
2. INITIAL TERM. The Initial Term of the Agreement shall begin on the
Effective Date and end on the third anniversary of the Effective Date.
3. VALUE ADDED OFFERING. Distributor will satisfy the following value
added criteria in connection with the Licensed Software and will continue to
satisfy such criteria during the term of the Agreement:
Distributor will interface the Licensed Software as a component of the
Value Added Offering;
Distributor will provide installation support for the Licensed Software
as part of the Solution; or
Distributor will provide consulting services for the Licensed software
as part of the Solution.
4. TERRITORY. Distributor's Territory shall be (*).
5. LICENSED SOFTWARE. Subject to Section 7 below, the Licensed Software
shall consist of the following software programs:
SIEBEL WORKGROUPS EDITION LICENSED SOFTWARE
----------------------------------------------------------------------------------------------------------------------
PROGRAMS LICENSED VERSION
----------------------------------------------------------------------------------------------------------------------
Siebel Sales for Workgroups (Base Applications) Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Service for Workgroups (Base Application) Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Call Center for Workgroups (Base Application) Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Advanced Selling Pack for Workgroup Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Advanced Service Pack for Workgroups Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Telebusiness Pack for Workgroups Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Product Configurator for Workgroups Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Server Pack for Workgroups Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel eChannel for Workgroups Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel eService for Workgroups Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Tools for Workgroups Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel VB for Workgroups Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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00
Xxxxxx Xxxxxxxxxx Edition Licensed Software
----------------------------------------------------------------------------------------------------------------------
PROGRAMS LICENSED VERSION
----------------------------------------------------------------------------------------------------------------------
Siebel Call Center (Base Applications) Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Sales Enterprise (Base Application) Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Service Enterprise (Base Application) Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Field Service (Base Application) Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Thin Client (Deployment Option) Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Encyclopedia Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Office Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Calendar Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Reports Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Expense Reporting Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Executive Information System (EIS) Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Incentive Compensation Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Order Entry Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Contracts Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Campaigns Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
SiebelSmartScript Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel CTI Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel CTI Connect Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Remote Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Anywhere Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Workflow Manager Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Assignment Manager Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Advanced Search Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
SiebelData Quality Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Jdistance Learning Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Quotes Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Revenue Forecasting Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Product Forecasting Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Proposal Generator Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Presentations Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Sales Assistant Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Target Account Selling Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Customer Service Integration Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Resource Assignment Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Time Management & Reporting Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Agreements Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Product Configurator Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
SiebelProduct Configurator Integration Object Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel eSales (named Users) Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Service Assistant Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Quality Management Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel E-mail Agent Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Service Inventory Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Shipping/Receiving Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
SiebelLogistics Manager Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Repair Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Sales HandHeld Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Enterprise Connector for SAP(TM)R/3(R) Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Replication Manager Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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----------------------------------------------------------------------------------------------------------------------
Siebel Tools Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Bus Object Designer Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Application Upgrader Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel VB Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel BusObject Interfaces Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Database Extension Designer Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Report Designer Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel System Software Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Administration Manager Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Marketing Manager Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Enterprise Integration Manager Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Remote Server Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Server Manager Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Global Enterprise Support Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Multi Currency Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Language Extensions Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Siebel Server Extensions for the Solaris Operating Environment(TM) Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
Additional Siebel Language Extensions Siebel 99 (v5.x)
----------------------------------------------------------------------------------------------------------------------
6. ANCILLARY PROGRAMS(1). The Ancillary Programs currently consist of the
following software programs and such other programs as may be listed in Siebel's
Documentation from time to time.
----------------------------------------------------------------------------------------------------------------------
PRODUCT VERSION
----------------------------------------------------------------------------------------------------------------------
Sysbase SQL Anywhere v5.x
----------------------------------------------------------------------------------------------------------------------
Adobe Acrobat Reader v3.0
----------------------------------------------------------------------------------------------------------------------
Intersolv DataDirect Closed ODBC Driver (for Oracle RDBMS only)(2) v2.x
----------------------------------------------------------------------------------------------------------------------
MSODBC Drivers v2.5
----------------------------------------------------------------------------------------------------------------------
(1) The Ancillary Programs and any related requirements are subject to
change as specified by Siebel in its discretion on thirty (30) days
prior written notice to Distributor.
(2) This Ancillary Program may only be distributed by Distributor under the
terms of this Agreement subject to Distributor's payment of the
following fees: (i) sublicense fees equal to (*), and (ii) maintenance
fees equal to (*)/every twelve months. Siebel reserves the right change
such related fees at any time upon written notice to Distributor.
7. PRODUCT RESTRICTIONS.
(*)
8. DISTRIBUTOR OBLIGATIONS.
(a) DISTRIBUTOR'S RESOURCE COMMITMENT. As soon as reasonably practicable
after the Effective Date and during the term of this Agreement, Distributor will
dedicate one full-time Program/Partnership Manager, who shall carry a minimum
yearly quota of (*) in Sublicense Fees (not to Siebel), one part-time marketing
manager and the following personnel resources to support the Licensed Software
and Distributor's obligations under this Agreement:
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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----------------------------------------------------------------------------------------------------------------------
CERTIFIED QUOTA-CARRYING CRM CERTIFIED PRE-SALES CERTIFIES TECHNICAL SUPPORT
TIME PERIOD REPRESENTATIVES(3) SPECIALISTS(4) REPRESENTATIVES(5)
----------- ---------------- ------------ -----------------
----------------------------------------------------------------------------------------------------------------------
Year One (*) (*) (*)
----------------------------------------------------------------------------------------------------------------------
Year Two (*) (*) (*)
----------------------------------------------------------------------------------------------------------------------
Year Three (*) (*) (*)5
----------------------------------------------------------------------------------------------------------------------
(3) Each Certified Quota-Carrying CRM Representative shall (i) promptly
complete Siebel's Certification training program; (ii) be dedicated
full-time to supporting the Licensed Software and Distributor's
obligations under this Agreement and (iii) carry a minimum yearly quota
of (*) in Sublicense Fees (not to Siebel).
(4) Each Certified Siebel Sales Specialist shall (i) promptly complete
Siebel's certification training program; and (ii) be dedicated
full-time to supporting the Licensed Software and Distributor's
obligations under this Agreement. (5) The number of Certified Technical
Support Representatives is subject to increase based on the agreement
of the parties pursuant to the parties' business plan for this
relationship.
(b) MARKETING, SALES AND TECHNICAL TRAINING FUNDS. As soon as reasonably
practicable after the Effective Date of this Agreement,
----------------------------------------------------------------------------------------------------------------------
SALES TECHNICAL SUPPORT
TIME PERIOD SIEBEL-RELATED MARKETING TRAINING* TRAINING*
----------- ------------------------ --------- ---------
----------------------------------------------------------------------------------------------------------------------
Year One (*) (*) (*)
----------------------------------------------------------------------------------------------------------------------
Year Two XXX XXX TBD
----------------------------------------------------------------------------------------------------------------------
Year Three XXX XXX TBD
----------------------------------------------------------------------------------------------------------------------
* Siebel training will be offered at Siebel's then current list price, provided
that during the first six (6) months of the License Term Distributor will
receive a (*) off of such list price.
It is understood that the amounts set forth in this Section 8(b) for Year Two
and Year Three are to be determined but in no event shall such amounts be lower
than in the previous year.
9. SIEBEL OBLIGATIONS.
(a) SIEBEL'S RESOURCE COMMITMENT. As soon as reasonably practicable after
the Effective Date and during the term of this Agreement, Siebel will dedicate
one full-time quota-carrying Program Partnership Manager, one full-time sales
consultant, one part-time channels marketing representative and other personnel
as reasonably necessary to support Siebel's obligations under this Agreement.
(b) MARKETING FUNDS. Siebel agrees that it will secure a marketing budget
matching the amount secured by Distributor during Year One of the License Term
up to a maximum of (*). It is understood and agreed that of such amount, (*)
will be specifically dedicated to generating potential opportunities for resale
of the Licensed Software pursuant to this Agreement and (*) will be generally
dedicated to further the parties' relationship as contemplated by this
Agreement.
(c) SALES OVERVIEW TRAINING. Siebel will provide to Distributor free of
charge up to one half-day of sales overview training to Distributor's general
sales force which will be conducted by Siebel's channels organization.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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EXHIBIT B
MAINTENANCE POLICY
At any given time, provided that Distributor has paid the applicable Maintenance
Services fees, Siebel shall provide support for (a) the then current version of
the Licensed Software enumerated in Order Forms executed pursuant to an
applicable Software License and Services Agreement, and (b) the immediately
preceding version of such Licensed Software, but only for a period of six (6)
months following the release of the then current version that is made generally
available, provided that all such Licensed Software is are then generally
available from Siebel and operated on a Supported Platform. Such Licensed
Software is referred to in this Policy as the Supported Programs."
1. MAINTENANCE
Maintenance covers Supported Programs during both implementation and production
use of such Programs. Siebel will use reasonable commercial efforts to cure, as
described below, reported and verifiable errors in Supported Programs so that
such Programs perform in all material respects the functions described in the
associated Documentation. Siebel recognizes four severity levels of Supported
Program errors or issues:
Severity 1 - Critical Business Impact. Customer's production use of the
Support Programs is stopped or so severely impacted that the Customer cannot
reasonably continue work. Siebel will begin work on the Program error within one
hour of notification during Technical Support's normal business hours and will
engage development staff until an acceptable workaround is achieved.
Severity 2 - Significant Business Impact. Important Program features
are unavailable with no acceptable workaround. Customer's implementation or
production use of the Supported Programs is continuing but not stopped; however,
there is a serious impact on the Customer's productivity and/or service levels.
Siebel will begin work on the Program error within two hours of notification
during Technical Support's normal business hours and will engage development
staff until an acceptable workaround is achieved.
Severity 3 - Some Business Impact. Important Program features are
unavailable but a workaround is available, or less significant Program features
are unavailable with no reasonable workaround. Customer's work, regardless of
the environment or product usage, has minor loss of operational functionality or
implementation resources. Siebel will provide initial response regarding the
requested information or documentation clarification within 24 hours of
notification during Technical Support's normal business hours and will consider
a workaround, if appropriate, and Supported Program enhancements for inclusion
in a subsequent Program Update.
Severity 4 - Minimal Business Impact. Customer requests information, an
enhancement, or documentation clarification regarding the Supported Programs but
there is no impact on the operation of the Supported Programs. Customer's
implementation or production use of the Supported Programs is continuing and
there is no work being impeded at the time. Siebel will
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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provide initial response regarding the requested information or documentation
clarification within 48 hours of notification during Technical Support's normal
business hours and will consider Supported Program enhancements for inclusion in
a subsequent Program Update.
Siebel will provide Distributor with a single copy of the fix or workaround on
suitable media. Distributor will distribute the fix or workaround to Supported
Programs as necessary.
2. UPDATES
Siebel shall, from time to time, in its sole discretion, make Updates to
Supported Programs available to Distributor at no additional charge except for
media and handling charges. If a Customer transfers the Supported Program to a
hardware and/or software platform which is not supported by Siebel at the time
of such transfer, Siebel shall continue to provide to Distributor Updates which
operate on a Supported Platform and Siebel shall have no further obligation to
fix errors which occur when the Program is run on any platform other than the
Supported Platform. Notwithstanding the foregoing, Distributor shall remain
obligated to pay for Maintenance Services ordered by Distributor prior to such
transfer.
3. SUPPORT
3.1 Customer shall establish and maintain the organization and processes to
provide First Line Support for the Supported Programs directly to Users.
3.2 If after reasonable commercial efforts Customer is unable to diagnose
or resolve problems or performance deficiencies of the Supported Programs,
Customer shall contact Distributor for Second Line Support and Distributor shall
provide support for the Supported Programs in accordance with Siebel's then
current policies and procedures for Second Line Support.
3.3 Distributor shall establish and maintain the organization and processes
to provide Second Line Support for the Supported Programs to Customer. Second
Line Support shall be provided to Customer only, if, after reasonable commercial
efforts, Customer is unable to diagnose and/or resolve problems or performance
deficiencies of the Supported Programs. Second Line Support shall be provided to
up to two designated Siebel trained representatives of Customer.
3.4 Second Line Support shall be provided by Distributor through (i)
telephone support during local normal business hours, (ii) electronic mail, and
(iii) through the World Wide Web to the extent such support is technically and
reasonably feasible.
3.5 Siebel shall provide Distributor Third-Line Support for the Supported
Programs in accordance with Siebel's then current Maintenance and Support
Services Policy. Distributor shall provide Siebel with the necessary remote
access (e.g. modem) to Customer's Supported Platform so that Siebel may, at its
option, provide remote diagnostic capability. Siebel does not assure performance
of the maintenance se s described herein if such remote access (e.g., modem) to
Customer's Supported Platform so that Siebel may, at its option, provide remote
diagnostic capability. Siebel does not assure performance of the maintenance
services described herein if such remote access is not provided by Distributor
when requested by Siebel. Siebel shall not
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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provide Third Line Support directly to Users. It is understood that the
foregoing provisions in this Section 3 shall apply after the Assumption of
Support. Prior to the Assumption of Support, Siebel will provide Maintenance and
Support Services directly to Users as a subcontractor to Distributor.
4. MAINTENANCE AND SUPPORT FEES
4.1 Annual fees for Maintenance Services as described herein shall be as
set forth in the Order Form.
4.2 Siebel may, at its sole option, reinstate lapsed Maintenance Services
in accordance with its then current policies upon payment by Distributor of the
applicable reinstatement fee.
5. EXCLUDED SERVICES
The following services are outside the scope of Siebel's Maintenance Services:
5.1 Service for Supported Programs which have been subject to unauthorized
modification by Customer or Distributor.
5.2 Service for Supported Programs for which all required Maintenance
releases have not been implemented by Customer or Distributor.
5.3 Service which becomes necessary due to: (i) failure of computer
hardware or equipment or programs not covered by this schedule; or (ii) any
cause or causes beyond the reasonable control of Siebel (e.g., floods, fires,
loss of electricity or other utilities), negligence of Customer, Distributor or
any third party, operator error, improper use of hardware or software or
attempted maintenance by unauthorized persons.
5.4 Services performed at the Customer's or Distributor's site unless the
parties mutually agree otherwise.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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EXHIBIT C
DOCUMENTATION
DESCRIPTION OF DOCUMENTATION:
Siebel's Documentation includes on-line help for all licensed Users, one (1)
printed copy of the Data Model Reference Manual, one (1) printed copy of the
Data Mart Data Model Reference (if applicable), and one (1) electronic copy
(from which Customer may print up to three (3) printed copies) of the
Installation and Upgrade Guide, Administration Guide and Release Notes as well
as the Documentation that applies to the Licensed Software at no additional
charge. Additional Documentation that is currently available from Siebel as of
the Effective Date is priced as described in Siebel's price list.
DATA MODEL REFERENCE MANUAL SUPPLEMENTAL CONFIDENTIALITY TERMS AND CONDITIONS:
The following additional terms and conditions apply to Siebel's provision of the
Siebel Data Model Reference Manual and/or Siebel Data Mart Data Model Reference
(collectively and individually, the "Data Model") to Customer. The Data Model
shall be governed by the terms that apply to Licensed Software under the
Agreement, except that with respect to the Data Model, the nondisclosure
obligations set forth in Section 9.1 ("Nondisclosure") of the Agreement shall
not be limited to the period equal to the term of the Agreement plus three (3)
years, but shall continue perpetually.
1. AUTHORIZED EMPLOYEES AND AUTHORIZED CONTRACTORS. Customer may disclose
the Data Model only to employees and contractors who (i) require access thereto
for a purpose authorized by the Agreement, and (ii) have personally signed the
Access Log which is set forth as the initial page of the Data Model. Such
employees and contractors are hereby designated "Authorized Employees" and
"Authorized Contractors." Notwithstanding the foregoing, if (i) Siebel
reasonably believes that any employee or contractor is engaged in the
integration, customization or other development-related activities of products
similar to or competitive with Siebel's products either for its own benefit or
for the benefit of a third party ("Similar Product Development"), and Customer
cannot assure Siebel to its reasonable satisfaction that such employee or
contractor, while engaged in support such development activities, will be able
to refrain from commingling or sharing any portion of the Data Model with any
such Similar Product Development, or (ii) Siebel reasonably believes that the
Data Model may not be properly safeguarded by any employee or contractor, Siebel
shall notify Customer in writing and, upon receipt of such notification,
Customer shall immediately terminate such employee's or contractor's access to
the Data Model. Customer shall promptly provide Siebel the original of the
Access Log upon request. In the event Siebel disapproves of an employee or
contractor in accordance with the foregoing, Siebel shall provide Customer
prompt notice of such disapproval no later than fifteen (15) days following
Customer's having provided Siebel with the original of the Access Log. Siebel
shall be deemed to have accepted all employees and contractors who have signed
the Access Log until Siebel notifies Customer to the contrary. Any breach of the
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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Agreement by an employee or contractor of Customer shall be deemed to be a
breach by Customer.
2. PROCEDURES FOR HANDLING THE DATA MODEL. Siebel shall ensure that the
Data Model will be appropriately identified as Siebel's Confidential Information
before being made available to Customer hereunder. Customer shall ensure that
the same degree of care is used to prevent the unauthorized use, dissemination,
or publication of the Data Model as Customer uses to protect its own
confidential trade secret information of a like nature (i.e., other
highly-sensitive proprietary technical data and information of Customer as
source code). Customer shall not disclose any portion of the Data Model to third
parties, with the exception of Authorized Employees and Authorized Contractors
as set forth in Section 1 above. Customer shall maintain one master copy of the
Data Model and Customer will designate one employee ("Data Model Access
Coordinator)" who shall be responsible for controlling all access to such master
copy. All hard copies of the Data Model must be kept in a locked drawer, cabinet
or room at all times when not in use. Customer may not reproduce any portion of
the Data Model for any purpose. If Customer wishes to obtain additional hard
copies of the Data Model, Siebel shall provide Customer additional copies, as
reasonably necessary, at Siebel's then-current price.
3. TRADE SECRETS. The Data Model and any part thereof constitute trade
secrets of Siebel and/or its suppliers, and will be used by Customer only in
accordance with the terms of this Agreement. Customer shall take prompt and
appropriate action to prevent unauthorized use or disclosure of the Data Model
by the Authorized Employees and Authorized Contractors.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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EXHIBIT D
TRADEMARKS
SIEBEL(R) and the Siebel product names
Universal Agent(TM)
ActiveBriefings(R)
TSQ(R)
Xxxxx.xxx(TM)
TrickleSync(TM)
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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EXHIBIT E
(*)
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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EXHIBIT F
MINIMUM TERMS OF END USER LICENSE AGREEMENT
Distributor agrees that its agreements with End Users will contain the following
minimum terms and conditions, and that such agreements will not include any
additional terms and conditions which are inconsistent with such minimum terms
and conditions.
1. DEFINITIONS.
1.1 "AFFILIATE" shall mean any corporation, company or other
entity controlled by, controlling, or under common control
with End User. Such entity shall be deemed to be an
"Affiliate" only so long as such control exists. Upon request,
End User agrees to confirm the Affiliate status of a
particular entity.
1.1A "ANCILLARY PROGRAM" shall mean the third party software
specified in the Documentation and in one or more Order Forms
issued pursuant to this Agreement and which are delivered with
or embedded in the Program.
1.2 "COMMENCEMENT DATE" of each Program License shall mean the
date on which End User and Distributor enter into an Order
Form pursuant to which End User purchases Program Licenses for
such Program(s).
1.3 "DESIGNATED SYSTEM(s)" shall mean End User's computer hardware
and operating system(s) designated on the Order Form(s).
1.4 "MAINTENANCE AND SUPPORT SERVICES" shall mean Program support
provided under Distributor's policies in effect on the date
Maintenance and Support Services are ordered, subject to the
payment by End User of the applicable fees for such support.
Distributor reserves the right to alter such policies from
time to time using reasonable discretion.
1.5 "ORDER FORM(s)" shall mean the document (substantially in the
form of EXHIBIT G) by which End User orders Program Licenses
and related services and which is executed by the parties.
Each Order Form shall reference the Effective Data of this
Agreement and shall, upon signature by both parties, be deemed
to have been incorporated into this Agreement.
1.6 "PRE-PRODUCTION PROGRAM(s)" shall mean a software program
which is not generally licensed for commercial use by
Distributor or which is not listed in Distributor's generally
available marketing literature or which is designated as a
"Alpha," "Beta," or "Pre-Production" program or release by
Distributor.
1.7 "PROGRAM(s)" shall mean the Programs all as described in one
or more Order Forms issued pursuant to this Agreement; the
media upon which such software is delivered to End User; and
Updates Programs shall not include Ancillary Programs.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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1.8 "PROGRAM LICENSE" shall constitute each license granted to End
User pursuant hereto for a User to use a Program as specified
in one or more Order Forms.
1.9 "TRAINING MATERIALS" shall mean any Siebel Systems' training
materials provided in connection with any training courses
ordered by Customer and delivered as set forth in this
Agreement.
1.10 "UPDATE(s)" shall mean a subsequent release of the Program
which is generally made available for Program Licenses
receiving Maintenance and Support Services, at no additional
charge. Updates shall not include any release, option or
future product
1.11 "USERS" shall mean the named or specified (by password or
other user identification) individuals authorized by End User
to use specified Programs, regardless whether the individual
is actively using the Programs at any given time. The maximum
number of Users that may use or access the Programs shall be
specified in an Order Form(s). "Users" may include the
employees of End User and third parties, provided that such
third party is limited to use of the Programs (i) only as
configured and deployed by End User and solely in connection
with End User's or Affiliates' business operations as
conducted by or through such third party, including but not
limited to the installation, administration or implementation
of the Programs for End User, and (iii) made subject to a
written agreement with such third party which contains
provisions which are consistent with the provisions of
Sections 2.1, 2.2 and 4.1. Each Affiliate shall comply with
all of End User's obligations under this Agreement and End
User shall be jointly and severally liable for any breaches of
this Agreement by Affiliates.
1.12 "USER SYSTEM" shall mean the computer hardware and operating
systems operated by Users in the course of their employment
with End User, including notebook and portable computers.
2. PROGRAM LICENSE.
2.1 LICENSE GRANT. Subject to the terms and conditions of this
Agreement, Distributor hereby grants to End User the following
nontransferable, nonexclusive, rights and licenses for End
User's own internal business operations as follows:
A. TO USE. (i) to use the Programs and Ancillary
Programs solely on the Designated System, or on a
backup system if the Designated System is
inoperative; (ii) to use the Documentation solely for
purposes of supporting End User's use of the
Programs; (iii) to use the Training Materials solely
for purposes of supporting Users who attend Siebel
Systems' training courses; (iv) to use the Siebel
Tools Programs solely in accordance with the
Documentation to create End User-specific objects
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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for use with the Programs; and (v) to have third
parties (e.g., system integrators) install,
integrate, and implement the Programs and Ancillary
Programs for the End User;
B. TO COPY. (i) to copy the Programs that operate on
server systems as reasonably necessary to support the
maximum number of named Users; (ii) to copy the
Programs and Ancillary Programs that operate on the
personal computers of Users up to the maximum number
of named Users, provided that End User may make one
additional copy of each such Program for use on one
personal computer, per named User, so long as such
User operates only one copy of such Program at any
given time; (iii) to make a reasonable number of
additional copies of the Programs and Ancillary
Programs solely for archival, emergency back, or
disaster recovery purposes; and (iv) to copy the
on-line help Documentation as reasonably necessary to
support its Users.
2.2 LICENSE RESTRICTIONS AND EXCLUSIONS. The rights granted in
Section 2.1 are subject to the following restrictions: (i) End
User may use the Ancillary Programs only in combination with
the Programs and solely for purposes of installing and/or
operating the Programs; End User may not use the Ancillary
Programs as stand-a lone applications; (ii) End User may not
reverse engineer, disassemble, decompile, or otherwise attempt
to derive the source code of the Programs or Ancillary
Programs; provided that, if required under applicable law,
upon End User's request, Distributor shall provide information
necessary for End User to achieve interoperability between the
Programs and other software for a nominal administrative
charge; (iii) End User may not sublicense or use the Programs
or Ancillary Programs for commercial time-sharing, lease,
rental or service bureau use, or to train person other than
named Users, unless previously agreed to in writing by
Distributor; (iv) End User shall not use the Siebel Tools
Programs for general application development purposes; and (v)
with regard to any and all copies of the Programs, Ancillary
Programs, and Documentation, End User shall only make exact
copies of the versions as originally delivered by Distributor,
End User shall ensure that each copy contains all titles,
trademarks, and copyright and restricted rights notices as in
the original, and all such copies shall be subject to the
terms and conditions of this Agreement.
2.3 RETENTION OF RIGHTS. Distributor and its suppliers (including
Siebel Systems) reserves all rights not expressly granted to
End User in this Agreement. Without limiting the generality of
the foregoing, End User acknowledges and agrees that: (i)
except as specifically set forth in this Agreement,
Distributor and its suppliers retain all rights, title and
interest in and to the Programs, Ancillary Programs,
Documentation, Deliverables and Training materials and End
User acknowledges and agrees that it does not acquire any
rights, express or implied, therein; (ii) any configuration or
deployment of the Programs shall not affect or diminish
Distributor's or Siebel Systems' rights, title, and interest
in and to the Programs: and (iii) if End User suggests any new
features, functionality or performance for
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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the Programs that Siebel Systems subsequently incorporates
into the Programs, such new features, functionality, or
performance shall be the sole and exclusive property of Siebel
Systems and shall be free from any confidentiality
restrictions that might otherwise be imposed upon Siebel
Systems.
2.4 TRANSFER AND ASSIGNMENT.
(a) End User may, upon written notice to Distributor and
payment of any then-applicable transfer fee, transfer
a Program from a Designated System; provided,
however, that if End User transfers the Program to a
hardware and/or software platform which is not
supported by Distributor at the time of such
transfer, Distributor shall continue to provide
Updates to End User which operate on the supported
platform and Distributor shall have no further
obligation to fix errors which occur when the Program
is run on the unsupported platform. Notwithstanding
the foregoing, End User shall remain obligated to pay
for Maintenance and Support Services ordered by End
User prior to such transfer.
(b) Neither this agreement or any rights granted
hereunder, nor the use of any of the Programs, may be
sold, leased, assigned, or otherwise transferred, in
whole or in part, by End User, and any such attempted
assignment shall be void and of no effect; provided,
however, that End User may assign this Agreement in
connection with a merger, acquisition or sale of all
or substantially all of its assets unless the
surviving entity is a direct competitor of
Distributor or Siebel.
2.5 VERIFICATION. End User is hereby notified that Siebel Systems
Incorporated, a California corporation located at 0000 Xxxxx
Xxxxx Xxxxxx, Xxx Xxxxx, XX 00000 is a third-party beneficiary
to this Agreement and that the provisions of this Agreement
related to End User's use of the Programs are made expressly
for the benefit of Siebel and are enforceable by Siebel in
addition to Distributor. At Siebel's written request, not more
frequently than annually, End User shall furnish Siebel with a
certificate executed by an officer of End User (a) providing a
list of Users by name and country; and (b) listing the
locations and types of the Designated Systems on which the
System Programs are run.
Distributor and Siebel reserve the right to audit End User's
use of the Programs no more than once annually at Distributor
or Siebel's expense. Distributor or Siebel shall schedule any
audit at least thirty (30) days in advance. Any such audit
shall be conducted during regular business hours at End Users
facilities and shall not unreasonably interfere with End
User's business activities. If such audit reveals that End
User has underpaid fees to Distributor as a result of
unauthorized use or copying of the Programs, End User shall
pay to Distributor such underpaid fees at the prices
previously agreed to for such Programs plus interest thereon
at the prevailing United States prime rate from the initial
date of the unauthorized use.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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3. TERM AND TERMINATION.
3.1 TERM. Each Program License granted under this Agreement shall
commence on the applicable Commencement Date and shall remain
in effect perpetually unless such Program License or this
Agreement is terminated as provided in Section 3.2
(Termination by Distributor).
3.2 TERMINATION BY DISTRIBUTOR. Distributor may terminate this
Agreement or any Program License upon written notice if End
User breaches this Agreement and fails to correct the breach
within thirty (30) days following written notice from
Distributor specifying the breach.
3.3 HANDLING OF PROGRAMS UPON TERMINATION. If a Program License
granted under this Agreement terminates, End User shall (a)
cease using the applicable Programs, documentation, and
related Confidential Information and (b) certify to
Distributor within thirty (30) days after termination that End
User has destroyed, or has returned to Distributor, the
Programs, documentation and related Confidential Information
and all copies thereof. This requirement applies to copies in
all forms, partial and complete, in all types of media and
computer memory, and whether or not modified or merged into
other materials. Before returning Programs to Distributor, End
User shall acquire a Return Material Authorization ("RMA")
number from Distributor.
3.4 SURVIVAL. The parties rights and obligations under Sections
2.2(iii), 2.3, 2.4, 3 and 4 shall survive termination of this
Agreement.
4. GENERAL TERMS.
4.1 NONDISCLOSURE. By virtue of this Agreement, the parties may
have access to information that is confidential to one another
("Confidential Information"). Distributor's Confidential
Information shall include the Programs, formulas, methods,
know-how, processes, designs, new products, developmental
work, marketing requirements, marketing plans, customer names,
prospective customer names, the terms and pricing under this
Agreement, and all information clearly identified in writing
at the time of disclosure as confidential.
A party's Confidential Information shall not include
information that (a) is or becomes a part of the public domain
through no act or omission of the other party; (b) was in the
other party's lawful possession prior to the disclosure and
had not been obtained by the other party either directly or
indirectly from the disclosing party; (c) is lawfully
disclosed to the other party by third party without
restriction on disclosure; or (d) is independently developed
by the other party. End User shall not disclose the results of
any performance tests of the Programs to any third party
without Siebel's prior written approval.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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The parties agree to hold each other's Confidential
Information in confidence during the term of this Agreement
and of a period of three (3) years after termination of this
Agreement, provided, however that with respect to the Siebel
Data Model Reference Manual, the Siebel Data Mart Data Model
Reference, and other highly sensitive confidential information
clearly identified as such at the time of disclosure by either
party ("Highly Sensitive Confidential Information"), the
nondisclosure obligation as set forth herein shall continue
indefinitely. Customer's additional obligations regarding the
Xxxxxx Data Model Reference Manual and Siebel Data Mart Data
Model Reference shall be set forth in a separate nondisclosure
agreement that must be entered into directly with Siebel
Systems before the Data Model Reference shall be set forth in
a separate nondisclosure agreement that must be entered into
directly with Siebel Systems before the Data Model is provided
to Customer by Siebel Systems. The parties agree, unless
required by law, not to make each other Confidential
Information available in any form to any third party or to use
each other's Confidential Information for any purpose other
than in the performance of this Agreement. Each party agrees
to take all reasonable steps to ensure that Confidential
Information is not disclosed or distributed by its employees
or agents in violation of the terms of this Agreement. Each
party acknowledges and agrees that, due to the unique nature
of Confidential Information, there can be no adequate remedy
at law for breach of this Section 4.1 and that such breach
would cause irreparable harm to the non-breaching party;
therefore, the non-breaching party shall be entitled to seek
immediate injunctive relief, in addition to whatever remedies
it might have at law or under this Agreement.
4.2 DISCLAIMER OF IMPLIED WARRANTIES. Distributor does not warrant
that (i) the Programs will meet End User's requirements, (ii)
the Programs will operate in the combinations which End User
may select for use, (iii) the operation of the Programs will
be uninterrupted or error-free, or (iv) all Program errors
will be corrected. Limited Production Programs, pre-production
releases of Programs and Training Materials are distributed
"AS IS." THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL
OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED OR STATUTORY,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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EXHIBIT G
ORDER FORM
TO SEE ORDER FORM CLICK ON BAR.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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EXHIBIT H
LOGO LICENSE ADDENDUM
Siebel and Distributor agree to the terms contained in this Logo
License Addendum ("Addendum"). In the event of conflict between this Addendum
and this Agreement, the terms and conditions of this Addendum shall prevail with
respect to the subject matter herein.
1. LOGO LICENSE.
1.1 LICENSE GRANT. Subject to and conditioned upon Distributor's
compliance with the terms and conditions of this Addendum,
this Agreement and the Logo Usage Guidelines, Siebel hereby
grants to Distributor a non-exclusive, non-transferable right
to use within the Territory the Siebel Reseller Logo
designated by Siebel solely in conjunction with Distributor's
permitted activities pursuant to this Agreement and in the
manner described in the Logo Usage Guidelines.
1.2 RESTRICTIONS. If Siebel specifies that Distributor sis
required to have the solution validated by Siebel, then
Distributor's rights under this Agreement shall be conditioned
upon obtaining such validation from Siebel in accordance with
this Agreement. Distributor may not use or reproduce the
Siebel Reseller Log in any manner whatsoever other than as
expressly described in the Logo Usage Guidelines that contains
the specific guidelines concerning the size, placement and use
of the Siebel Reseller Logo.
1.3 RETENTION OF RIGHTS. Siebel expressly reserves all rights not
specifically granted to Distributor hereunder. Without
limiting the generality of the above, Distributor expressly
agrees that Siebel retains all right, title, and interest in
and to all of the Siebel Reseller Logos. All use of the Siebel
Reseller Log by Distributor will inure to the benefit of
Siebel. Under no circumstances will anything in this Agreement
be construed as granting, by implication, estoppel or
otherwise, a license to any Siebel technology or proprietary
right other than the permitted use of the Siebel Reseller Logo
pursuant to Section 1.1 above.
2. NO ENDORSEMENT
Siebel does not, and will not, endorse, warrant or guarantee the
performance of any Solution, products or services. Distributor will not
represent to any third party that Siebel has endorsed, warranted, or
guaranteed the performance of any Solution, products or services, that
Siebel has implied the merchantability or fitness for a particular
purpose of any Solution, products or services, or that Siebel intends
to do so.
3. QUALITY, INSPECTION, AND APPROVAL
3.1 QUALITY OF SOLUTIONS, PRODUCTS AND SERVICES. Distributor
agrees to maintain the quality of the Solution, products and
services used in conjunction with the Siebel Reseller Logo at
a level that meets or exceeds industry standards and at least
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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commensurate with the quality of Solution, products and
services distributed by Distributor as of the Effective Date.
3.2 QUALITY OF LOGO. The Siebel Reseller Logo may not be altered
by any party other than Siebel. The Siebel Reseller Logo must
be reproduced from the logo supplied by Siebel. The Siebel
Reseller Logo must stand alone in terms of commercial
impression generated by the particular usage and shall not be
used in close proximity with any other trademark or design.
Siebel reserves the right to amend any Siebel Trademarks and
to notify Distributor of any such amendments that are relevant
to Distributor's business or the Siebel Reseller Logo
applicable to Distributor.
3.3 INSPECTION. Distributor shall Supply Siebel with suitable
specimens of the Solution and products and Distributor's use
of the Siebel Reseller Logo in connection with the Solutions,
products and services at the times and in the manner described
in the Log Usage Guidelines, or at any time upon reasonable
notice from Siebel. Distributor shall cooperate with Siebel to
facilitate periodic review of Distributor's use of the Siebel
Reseller Logo and of Distributor's compliance with the quality
standards described in this Agreement.
3.4 APPROVAL. Siebel reserves the right to approve or reject use
of the Siebel Reseller Logo by Distributor. Distributor shall
fully correct and remedy any deficiencies in its use of the
Siebel Reseller Log, conformance to any validation guidelines,
and/or the quality of the Solutions, products and services
used in conjunction with the Siebel Reseller Logo, upon
reasonable notice from Siebel. If Siebel determines that the
Solutions, products or services do not meet Siebel's
standards, Siebel shall have the right to rescind Siebel's
approval of Distributor's use of the Siebel Reseller Logo and
any other Siebel Trademarks and to terminate this Agreement
for cause pursuant to Section 12.2.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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EXHIBIT I
[TO BE ATTACHED]
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 under the Securities Act of 1933, as
amended.
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