Exhibit 10.15
OEM AGREEMENT
BETWEEN
AUGUST TECHNOLOGY AND
XXXXXX SOFTWARE SOLUTIONS INC.
This OEM Agreement is entered by Xxxxxx Software Solutions Inc., and August
Technology Corporation as of the effective date set forth below. Xxxxxx Software
Solutions Inc. (herein after referred to as "Supplier"), a MA corporation,
registered at 00 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, shall provide software
product to August Technology Corporation (hereinafter referred to as the "OEM
Partner"), a Minnesota corporation, with a principal place of business at 0000
Xxxxx Xxxxxxxxxx Xxxx., Xxxxx, XX 00000, X.X.X.
Accordingly, in consideration of the premises and the promise set forth in this
Agreement, August Technology Corporation and Xxxxxx Software Solutions agree as
follows:
1. DEFINITIONS
"Copy" means (i) a single copy of the Software on a single central processing
unit or (ii) a single copy of the software on a single local area network server
with one active client user.
"Software Product" means software which is developed, maintained and marketed by
Xxxxxx.
2. GENERAL
Supplier is aiming at specializing in its technology and maintaining a leading
edge through continuous product development to meet customers requirements and
satisfy evolving market needs.
The cooperation with partners will be based upon NON-EXCLUSIVE OEM relations.
These relations will be established on grounds of the following principles:
- Supplier will not maintain any formal business relations with
end-customers. All customer-vendor monetary relations will be done
through the OEM Partner.
- Supplier will be eligible to maintain direct marketing relations
with the end-customers, in coordination with its OEM partner.
- Supplier will be free to sell the Product to companies other than
the OEM Partner.
3. EFFECTIVE DATE; TERM
The effective date of this Agreement is January 26, 2000. The initial term of
this Agreement shall be for five (5) years, unless terminated earlier in
accordance with the provisions of the Section 9 below. This Agreement shall
automatically renew for successive one-year terms; PROVIDED, HOWEVER, that
during the ninety (90) day period prior to any such renewal date, either party
may terminate this Agreement upon at least thirty (30) days prior written
notice.
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4. PRODUCT DEFINITION
Supplier's products to be included within the framework of this OEM agreement
are the following (referred to hereafter as the "Product"):
PRODUCT: WAFERBROWSER
6. NON RECURRENT ENGINEERING (NRE)
There will be a one time NRE charge for dedicated engineering effort for
integrating the Product with the Partner's system.
The Partner will pay Supplier a one time engineering cost of $30,000. The agreed
upon sum will be broken into 4 payments which will be paid at the following
milestones:
(1) Approval of the specifications and project initiation 25%
(2) Delivery of the tailored product to the Partner 15%
(3) End of the integration ((alpha)) 35%
(4) End of the (beta)-site 25%
(End if Beta site is defined as the time at which the first
installation is accepted by an August Technology customer)
(5) Includes single copy license for first Beta customer.
At such time as the specifications of the Smart Sampler have been agreed upon
by the parties, such specifications will be attached as Schedule A to this
agreement, which will be incorporated herein and made a part hereof.
7. PRICING
PRODUCT: SMART SAMPLER
(a) Product Price at $12,000 per software copy
(Price for a single copy on a single central processing unit,
or (ii) a single copy of the software on a single local area
network server with one active client users. Each additional
concurrent active client user is charged as an additional copy
at the prices as follows:)
NO. OF UNITS UNIT PRICE ($ US)
1 12,000
2-10 10,000
>10 8,000
(b) Prices will be effective for thirty-six (36) months (from
product introduction) and will be then reviewed every 12
months thereafter. If necessary, prices will be
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updated by Supplier on any such anniversary date to reflect
the market situation at that time. Supplier will not
increase prices by more than 10% in any one year except
upon the occurrence of exceptional circumstances, and, if
such occurs, the parties will negotiate in good faith the
amount of any such price increase, provided, however, that
if they are unable to agree, either party may terminate
this Agreement.
(c) Payment schedule for Beta customers 2-n will be 50% on start
of Beta and 50% on installation of production release.
8. SUPPORT CONTRACT
Supplier will provide the OEM Partner with a comprehensive support program,
comprising the following:
SOFTWARE SUPPORT PACKAGE
The Software Support Package (SSP), is intended to provide the OEM Partner with
all the assistance necessary to advertise, demonstrate, sell, and provide
after-sale support to its customers.
Under such SSP, Supplier's provisions will include:
- Bug fixes
- Application consulting over phone or email
- 4 software releases per year
- Minor software changes (software updates)
SSP at $ 6,000 per year
(but subject to the same provisions as are set forth in (b) of Section 6 above)
Subject to the following terms:
- Independent of product sales
- To be paid in advance before the applicable year or
alternatively, broken into 2 equal payments to be
paid every six months.
- First payment upon acceptance of first customer
installation.
- To include bug fixing and standard software updates.
- All August specific feature upgrades to be done on time &
materials basis.
ON-SITE SUPPORT PACKAGES
The On-site Support Package is intended to provide local on-site support at OEM
Partner's site or its customers site with a Supplier's software programmer.
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- On-site Support Package are offered at $150/hour
- Minimum 3 days charged
- All travel, lodging and boarding cost inclusive
9. LICENSE
Subject to the payment of the fees set forth in Sections 5 and 6 of this
Agreement, Supplier grants to OEM Partner a non-exclusive, worldwide right to
its end customers. Supplier shall retain all right, title and interest in and to
the Product, including all rights under any applicable patents, copyrights,
trademarks and trade secrets.
10. TERMINATION OF THE AGREEMENT
Either party may terminate this Agreement in the event of material breach by the
other party, where such breach remains uncorrected sixty (60) days after written
notice of the breach to the breaching party.
Termination by either party will not relieve OEM Partner of the obligation to
pay any amounts due Supplier with respect to pre-termination commitments from
OEM Partner's customers even though such amounts may be paid to Supplier after
termination.
11. LIMITATIONS OF WARRANTY
THE WARRANTY GIVEN IN SCHEDULE B TO THIS AGREEMENT IS THE SOLE AND EXCLUSIVE
WARRANTY GIVEN BY SUPPLIER WITH RESPECT TO THE PRODUCT, AND SUPPLIER MAKES NO
OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, OTHER THAN
AS EXPRESSLY SET FORTH IN SCHEDULE B. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, (A) SUPPLIER GIVES NO IMPLIED WARRANTY OF MERCHANTABILITY OR
IMPLIED WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE OR ANY WARRANTY THAT
THE SOFTWARE TO BE PROVIDED WILL WITHOUT DEFECT OR ERROR OR THAT THE USE OF
THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED, AND (B) NO IMPLIED WARRANT
ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE SHALL
ARISE BY OR IN CONNECTION WITH ANY ENGINEERING, MANUFACTURING OR USE OF THE
PRODUCT.
12. LIMITATIONS ON LIABILITY
THE SOLE REMEDY OF OEM PARTNER OR ANY END CUSTOMER FOR A BREACH OF ANY
REPRESENTATION OR WARRANTY OF SUPPLIER OR A DEFECT IN ANY PRODUCT SHALL BE
EITHER (A) TO CAUSE SUPPLIER TO USE ITS COMMERCIALLY REASONABLE EFFORTS TO
REMEDY SUCH BREACH AS QUICKLY AS REASONABLY PRACTICABLE, OR (B) A REFUND OF
THE PRICE PAID FOR THE PRODUCT. IN NO EVENT SHALL SUPPLIER BE LIABLE TO OEM
PARTNER OR ANY END CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OR PROFITS) ARISING
OUT OF
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ANY PERFORMANCE OF THIS AGREEMENT OR THE SALE, MANUFACTURE OR USE OF
THE PRODUCT. THE FOREGOING EXCLUSION OF DAMAGES SHALL APPLY REGARDLESS OF
WHETHER SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL
THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
13. LABELING
OEM Partner will not remove from the Product any copyright notices contained
therein.
14. ESCROW
Supplier agrees that it will enter into an escrow agreement as soon as
practicable with a reputable, third party escrow agent, and shall, pursuant to
such escrow agreement, deliver to the escrow agent a complete copy of the source
code version of the Product to be held in escrow under such terms and conditions
as are standard in the industry.
15. OEM PARTNER AGREEMENTS WITH END CUSTOMERS
The OEM Partner agrees to cause all end customers of the Product to enter into
an agreement that provides Supplier with the same limitations on warranty and
liability as are contained in Sections 11 and 12 of this Agreement. Supplier
agrees that such end customers have no use limitations on the Product including
the software even if Supplier and OEM Partner should terminate this Agreement.
16. MISCELLANEOUS
(a) ENTIRE AGREEMENT. This Agreement, together with the Schedules
hereto, constitutes the entire understanding between the parties with respect to
the subject matter hereof.
(b) AMENDMENT; WAIVER. This Agreement may be amended and any of its
terms or conditions may be waived only by a written agreement executed by the
parties or, in the case of a waiver, by the party waiving compliance. The
failure of either party at any time or times to require performance of any
provision hereof shall in no manner affect its rights at a later time to enforce
the same. No waiver by either party of any condition shall be deemed as a
further or continuing waiver of such condition or term or of any other condition
or term.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns.
(d) FORCE MAJEURE. Any delays in or failures of performance by either
party under this Agreement shall not be considered a breach of this Agreement if
and to the extent caused by occurrences beyond the reasonable control of the
party affected, including but not limited to: Acts of God; acts, regulations or
laws of any government; strikes or their concerted acts of
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worker; fires; floods; explosions; riots; wars; rebellion; and sabotage. Any
time for performance hereunder shall be extended by the actual time of delay
caused by such occurrence.
(e) GOVERNING LAW. This Agreement shall be governed by and construed
and interpreted in accordance with the internal, substantive laws of the
Commonwealth of Massachusetts, without reference to rules or principles of
conflicts or choice of law.
(f) SEVERABILITY. If any provision(s) of this Agreement are or become
invalid, are ruled illegal by any court of competent jurisdiction or are deemed
unenforceable under then current applicable law from time to time in effect
during the term hereof, it is the intention of the parties that the remainder of
this Agreement shall not be affected thereby. It is further the intention of the
parties that in lieu of each such provision which is invalid, illegal or
unenforceable, there be substituted or added as part of this Agreement a
provision which shall be as similar as possible in economic and business
objectives as intended by the parties to such invalid, illegal or enforceable
provision, but shall be valid, legal and enforceable.
(g) COUNTERPARTS. This Agreement may be executed by the parties in
separate counterparts, each of which will form one Agreement.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the Effective
Date.
Xxxxxx Software Solutions, Inc. August Technology Corporation
By:____________________________ By:__________________________
Print Name:____________________ Print Name:__________________
Title:_________________________ Title:_______________________
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