Exhibit 10.11
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RESELLER AGREEMENT
WITNESSETH:
WHEREAS, pursuant to that certain End User License Agreement between PSW
and RESELLER dated 11-4-96 RESELLER desires the right to resell portions of the
Deliverables and PSW Object Library to other parties.
WHEREAS, PSW is willing and able to grant such rights and licenses on the
terms and conditions set forth herein;
Section 1
DEFINITION OF TERMS
The definition of terms set forth in this Section 1 shall apply in this
Agreement (in addition to terms expressly defined elsewhere herein) including
any and all exhibits, addenda, and amendments made to or incorporated herein now
or in the future.
1.1 "Deliverables." Any and all tangible products delivered by PSW for
RESELLER under this Agreement, including all object diagrams,
functional specifications, prototypes, reports, conversion tools,
class libraries, the "source" code and object code, and all
necessary Documentation therefor and further including enhancements,
modifications, and corrections made to the Deliverables by PSW
pursuant to support, trainng, and maintenance services provided to
RESELLER by PSW.
1.2 "Documentation." All textual material relating to the Deliverables,
Including flow charts, operating instructions, and related technical
information. Documentation shall include user manuals, help text,
training materials, and sample source code used for training and
documentation purposes.
1.3 "Genova." The name of PSW's family of software and methodology
assets for custom business system development.
1.4 "Genova Methodology." PSW's family of software and methodology
assets for custom business systems using object oriented software
technology. This approach includes definition of phases,
phase entry & exit criteria, deliverables, activities, templates
tips & techniques.
1.5 "Genova On-Line." The reference document which specifies PSW's
software development methodology available in formats that can be
viewed by computers.
1.6 "Genova Academy." The classes taught by PSW to train software
developers and other project personnel in Genova.
1.7 "Genova Courseware." The documents, presentations, exercises, and
other tangible assets which comprise the materials used to teach the
Genova Academy classes.
1.8 "Genova Systems Library." Those Deliverables in Schedule 1 that are
specified to be part of the PSW Systems Library.
1.9 "Genova Business Library." Those Deliverables in Schedule 1 that are
specified to be part of the PSW Business Library.
1.10 "Genova Object Library." The combination of the PSW Systems Library
and the PSW Object Library.
1.11 "Genova Enhancements." Changes, corrections, modifications, or
additions, including all new releases and applications, made by PSW
to the PSW Object Library and related Documentation.
1.12 "RESELLER Enhancements." Changes, corrections, modifications, or
additions, including all new releases and applications, made by
RESELLER to the PSW Object Library and related Documentation.
1.13 "Computer Business." The Computer Business shall be defined to
include the research, development, production, marketing, selling,
distribution, or leasing of computer hardware, computer hardware
peripherals, integrated document management systems or cameras, or
the performance of development, consulting, training, or maintenance
services relating to computer hardware, computer hardware
peripherals, integrated document management systems, or cameras.
1.14 "PSW Licensors". Other parties who have licensed portions of the
Deliverables to PSW under separate agreements.
1.15 "Customer." Any end user customers to whom RESELLER directly markets
and sells the Product and who sign an End User License Agreement as
minimally defined in Schedule B.
1.16 "Product." Any deliverables licensed by PSW that Includes the Object
21 Library, CCSI Enhancements, PSW Enhancements, Documentation, or
other Deliverables. "Product" may include one or more separately
priced PSW offerings.
1.17 "End User License Agreement." The license agreement signed by and
end user customer of the reseller as minimally specified in Schedule
B.
Section 2
GRANT AND SCOPE OF RIGHTS FROM PSW TO RESELLER
2.1 Scope of Rights Granted. PSW hereby grants to RESELLER, and
RESELLER, hereby accepts, a nontransferable, non exclusive right to
distribute the Deliverables to Customers.
2.2 Rights Restrictions. RESELLER is not authorized to distribute or
sub-license the PSW Business Library or PSW Enhancements to any
xxxxx currently in or planning to enter the computer Business as
defined in Section 1.
2.3 End User License Agreement. Any distribution of the Product by
RESELLER shall be pursuant to the terms and conditions of the End
User License Agreement in the form attached hereto as Schedule B.
The terms and conditions of such End User License shall serve as the
minimum documentation distributed by RESELLER defining each
Customer's rights and obligations regarding the Product and RESELLER
agrees to provide in a conspicuous mnnner one copy of the End User
License with each Product. Although RESELLER shall not be liable to
PSW for any Customers failure to comply with the terms and
conditions of the End User License agreement, RESELLER agrees to
report to PSW any known or suspected violation(s) of the Customer
license agreement and to reasonably cooperate with PSW in any
enforcement actions taken by PSW.
Section 3
OWNERSHIP
3.1 Continuing Rights. PSW and PsW Licensors shall retain full ownership
of and full rights to continue to use and market the Deliverables
and the PSW Enhancements and all rights, title and interest in and
to all copyrights, patent rights or trade secret rights associated
with the Deliverables and the PSW Enhancements.
3.2 Copyrights. RESELLER shall not remove any existing copyright or
other proprietary rights notices from the PSW Object Library, PSW
Enhancements, or the Deliverables.
Section 4
TERM
4.1 Basic Term. This agreement shall be effective on the date first
above written and shall remain in force without term.
4.2 Loss of Rights by PSW. In the event that PSW shall lose any of its
sub-licenses or rights due to breach, bankruptcy, insolvency, or any
other event, the rights and obligations in this agreement shall
continue until the termination date.
Section 5
CONFIDENTIAL INFORMATION
Treatment of Confidential Information as defined in the End User License
agreement shall apply to this Agreement as well.
Section 6
REPRESENTATIONS AND WARRANTIES
RESELLER acknowledges and agrees that any representations and warranties
regarding the Deliverables are provided by PSW and that its sole remedy for
breach hereunder shall be against PSW and not against the PSW Licensors. THE PSW
UCENSORS EXPRESSLY DISCLAIM ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO
THE DELIVERABLES OR THE RESULTS OBTAINED FROM USING THE SAME, INCLUDING ANDY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTIBULAR PURPOSE.
Section 7
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL PSW OR THE PSW LICENSORS BE LIABLE FOR SPECIAL,
EXEMPLARY, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO
LEGAL FEES, LOSS OF PROFITS, LOSS OR INACCURACY OF SATA, OR LOSS RESULTING FROM
BUSINESS DISRUPTION, EVEN IF PSW OR THE PSW LICENSORS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
Section 8
THIRD-PARTY BENEFICIARY
RESELLER acknowledges that the Deliverables and Confidential Information include
that of the PSW Licensors and that the PSW Licensors are third-party
beneficiaries of this Agreement with all the rights of PSW to enforce the
obligations of this Agreement against RESELLER.
Section 9
U.S. GOVERNMENT RISTRICTED RIGHTS
If this license is acquired under a U.S. Government contact, use, duplication or
disclosure by the U.S. Government is subject to restrictions as set forth In
DFARS 252.227-701(c)(ii) for Department of Defense contracts and as set forth in
FAR 52.227-19(a)-(d) for civilian agency contracts. PSW and the PSW Licensors
reserve all unpublished rights under the United Stares copyright laws.
Section 10
GENERAL
10.1 Entire Agreement. The provisions herein constitute the entire
agreement between the parties with respect to the licensing of the
subject matter hereof and supersede all prior agreements, oral or
written, and all other communications relating to the licensing of
the subject matter hereof. No amendment or modification of any
provision of this Agreement will be effective unless set forth in a
document that purports to amend this Agreement and is executed by
both parties.
10.2 Assignment. LICENSEE shall not sell, transfer, assign, or
subcontract any right or obligation hereunder except as expressly
provided herein with out the prior written consent of PSW. Any act
in derogation of the foregoing shall be null and void. PSW may
assign this Agreement to another party.
10.3 Force Majeure. Except for failures to make any payment when due,
neither xxxxx shall be hold liable for failure to fulfill its
obligations hereunder if such failure is due to a natural calamity,
act of government, or similar cause beyond the control of such
party.
10.4 Governing Law. The validity, construction, and performance of this
Agreement shall be governed by the laws of the State of Texas.
10.5 Severability. If any provision of this Agreement is held by a court
of competent jurisdiction to be contrary to law, the remaining
provisions of the Agreement will remain in full force and effect.
10.6 Compliance with Laws and Regulations. PSW and LICENSEE shall comply
with all laws, rules, and regulations of competent public
authorities relating to the duties, obligations, and performance
under this Agreement and shall procure all licenses and pay all fees
and other charges required thereby.
10.7 Notices. Any notices required or permitted to be made or given by
either party hereto pursuant to this Agreement will be deemed
sufficiently made or given of the fifth day after the date of
mailing if sent to such party by certified mail, postage prepaid,
addressed as set forth below or to such other address as a party
shall designate by written notice given to the other party. Contact
and addresses for notices are Specified In Schedule C.
10.8 Waiver. A failure of either parry to exercise any right provided for
herein shall not be deemed a waiver of any right under this
Agreement.
10.9 Right Outside of Agreement. Nothing contained In this Agreement
shall be construed as limiting rights that the parties may enjoy
outside the scope of the licenses granted and the obligations and
restrictions set forth or treated herein.
Section 11
ROYALTY PAYMENTS AND REPORTS
11.1 Royalty Reports. RESELLER shall furnish to PSW a royalty report
including (a) the number of Products shipped during such calendar
quarter, (b) which Object 21 Library Deliverables, PSW Enhancements,
and RESELLER Enhancements are incorporated within or used in the
development of the Product; and (c) and any and all other
information necessary for the determination of royalties under this
agreement.
11.2 Royalty Records. RESELLER shall keep or cause to be kept full and
accurate accounts and records of all transactions made by it under
this agreement in form such that all amounts owing hereunder to PSW
may be readily and accurately determined. RESELLER shall use
commercially reasonable efforts to assure that it is (a) accurately
reporting to PSW all transactions with Customers and (b) otherwise
complying with the Agreement.
11.3 Royalty Base Confirmation. RESELLER shall, upon written request once
each calendar year, provide access to records with respect to the
licenses granted under this Agreement, during normal business hours,
to an independent accounting organization chosen and compensated by
PSW for the purposes of a confirming audit with respect to royalty
payments. RESELLER shall promptly make any payments due as a result
of the audit, and RESELLER shall reimburse PSW for the costs of such
audit pursuant to Section 11.2 is understated by more than five
percent (5%).
IN WITNESS THEREOF, the parties have caused this Agreement to be signed
below by their duly authorized representatives and to be effective as of
the later date written below:
PSW Technologies RESELLER
By: /s/ Xxx Xxxxxx By: [Illegible]
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Title: CFO, VP of Operations Title: President
Date: 12-10-96 Date: 11-4-96
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