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EXHIBIT 10.13
[TEMPLATE SOFTWARE LOGO]
DISTRIBUTOR AGREEMENT
BETWEEN
TEMPLATE SOFTWARE, INC.
AND
RCC INFORMATIESERVICES, B.V.
FOR
LICENSED SOFTWARE PRODUCTS
AUGUST 3, 1993
PROPRIETARY INFORMATION
NOT FOR USE OR DISCLOSURE OUTSIDE
TEMPLATE SOFTWARE, INC. AND RCC
EXCEPT UNDER WRITTEN AGREEMENT
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DISTRIBUTOR AGREEMENT
TABLE OF CONTENTS
Article I Agreement
Article II Definitions
Article III Grant of License
Article IV DISTRIBUTOR Representations and Obligations
Article V Support
Article VI Prices, Payment and Reporting
Article VII Warranties, Limitations of Liabilities and Remedies
Article VIII Intellectual Property
Article IX Indemnities
Article X Confidentiality
Article XI Term and Termination
Article XII Independent Relationship
Article XIII Notices
Article XIV Miscellaneous
ADDENDA
Addendum A Identification and Description of the "Licensed Product(s)"
Addendum B Development License Platform and Price
Addendum C "End User" Sublicense Agreement
Addendum D Territory Assignment
Addendum E TEMPLATE SOFTWARE Standard License Agreement
Addendum F List of Platforms on Which "Licensed Product(s)" Is Supported
Addendum G Training Requirements
Addendum H Maintenance Terms
Addendum I Marketing Material Price List
Addendum J DISTRIBUTOR Fee Schedule
Addendum K "Licensed Product(s)" Standard Price Lists
Addendum L Business Plan
Addendum M Format of Sales Forecast Report
Addendum N Fee Credits for Sales made by Others in the Territory
Addendum O DISTRIBUTOR Training Certification Requirements
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DISTRIBUTOR AGREEMENT
This Agreement is made between TEMPLATE SOFTWARE, INC. (TEMPLATE SOFTWARE), a
Maryland corporation with its principal offices at 00000 Xxxxxxxxx Xxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxxx 00000-0000, XXX and RCC Informatieservices b.v.,
(DISTRIBUTOR), a Dutch corporation with its principal offices at Xxxxxxxxxxx 0,
0000 XX Xxxxxxxxx, xxx Xxxxxxxxxxx.
ARTICLE I - AGREEMENT
TEMPLATE SOFTWARE owns a proprietary software product and related Documentation
(collectively "Licensed Product(s)") that is described in Addendum A. TEMPLATE
SOFTWARE hereby agrees to grant DISTRIBUTOR a license to use the Licensed
Product(s) and sublicense the Licensed Product(s) to End Users and DISTRIBUTOR
hereby agrees to accept the license from TEMPLATE SOFTWARE on the terms set
forth in this Agreement and Addenda referenced herein.
ARTICLE II - DEFINITIONS
A. "Business Plan" shall mean the document attached hereto as Addendum L
by mutual agreement of TEMPLATE SOFTWARE and DISTRIBUTOR, as amended
from time to time no less than annually by TEMPLATE SOFTWARE and
DISTRIBUTOR. Such Business Plan shall incorporate performance goals
for the DISTRIBUTOR.
B. "Confidential Information" shall mean all the Licensed Product(s)
Source and Object Code, Licensed Product(s) architecture, Licensed
Product(s) plans and futures, this Agreement and any and all
information contained therein and any information clearly marked by
TEMPLATE SOFTWARE as "Confidential Information", except any part
which:
1. Is or becomes publicly available through no act or
failure on the part of DISTRIBUTOR, DISTRIBUTOR's
customer, or End User; or
2. Was or is rightfully learned or obtained by
DISTRIBUTOR, DISTRIBUTOR's customer, or End User from
a source other than TEMPLATE SOFTWARE; or
3. Becomes independently available to DISTRIBUTOR,
DISTRIBUTOR's customer or End User as a matter of
right from a third party; or
4. Is expressly authorized by any subsequent agreement
between the parties.
C. "Development Versions" shall mean the Object Code comprising the
development environment provided by the Licensed Product(s) to aid in
the development of an application.
D. "Documentation" shall mean user manuals provided to End User for use
with the Licensed Product(s), as revised from time to time.
E. "End User" shall mean a customer within the Territory to whom
DISTRIBUTOR grants a sublicense to use the Licensed Product(s).
F. "End User Maintenance" shall mean the maintenance of the Licensed
Product(s) as provided by DISTRIBUTOR to the End User pursuant to a
maintenance agreement between the End User and DISTRIBUTOR.
G. "Internal Use" shall mean the authorized use of the Licensed
Product(s) for development, implementation and processing of licensee
data and applications and specifically does not include reselling,
leasing, marketing, licensing, sublicensing or distributing the
Licensed Product(s) to any other party.
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H. "Object Code" shall mean machine executable computer programs, or
computer programs in the form used to build machine-executable
computer programs, which result from the compilation and/or assembly
of Source Code.
I. "Run-Time Version" shall mean the Object Code libraries provided as
part of the Licensed Product(s).
J. "Source Code" shall mean a computer program in the form of a symbolic
programming language, which when compiled and/or assembled is
transformed into Object Code.
K. "Licensed Product(s)" shall mean TEMPLATE SOFTWARE's proprietary
Run-Time and Development Versions and their related Documentation, as
described in Addendum A, in Object Code format.
L. "Territory" shall mean the country or countries, or other definable
group that is defined in Addendum X.
X. "Updates" shall mean any revisions or enhancements to the Licensed
Product(s), or any part thereof, that are not included in the Licensed
Product(s) at the time of execution of this Agreement, that improve
the Licensed Product(s) and are related to, and not separately priced
from, the Licensed Product(s).
N. "Applications" shall mean software programs developed using SNAP and
the SNAP Horizontal Template Family.
ARTICLE III - GRANT OF LICENSE
A. License to Development Version - TEMPLATE SOFTWARE hereby grants the
DISTRIBUTOR, a non-exclusive, non-transferable license to use the
Licensed Product(s), on the terms and conditions set forth in this
Agreement, in the quantities, on the platforms and at price set forth
in Addendum B, for the Term of this Agreement, to (i) develop and
support applications for demonstration purposes only, (ii) market and
promote the Licensed Product(s) to DISTRIBUTOR's customers in the
Territory, and (iii) support and provide End User Maintenance for End
Users, and conduct End User training provided DISTRIBUTOR has become
certified to conduct End User training in accordance with Addendum O.
B. TEMPLATE SOFTWARE hereby grants DISTRIBUTOR a exclusive,
non-transferable right to sublicense Licensed Products to End Users in
the Territory as identified in Addendum D for the End User's Internal
Use provided the End User executes a sublicense agreement ("Sublicense
Agreement"), for the Licensed Products set forth in Addendum C.
Sublicense Agreements shall be in Dutch and shall be between
DISTRIBUTOR and the End User. DISTRIBUTOR shall provide TEMPLATE
SOFTWARE with a copy of the Sublicense Agreement accurately translated
into English. DISTRIBUTOR warrants that the Sublicense Agreement
shall contain the same semantic content as TEMPLATE SOFTWARE's
Standard License Agreement as contained in Addendum E including, but
not limited to, the Sections 4 - Assignment of Use, 3.e - Use, 7 -
Warranty of Performance, 9 - Trade Secret, Security and
Confidentiality, and 11 - Liability. DISTRIBUTOR further warrants
that the Sublicense Agreement shall contain an assignment clause that
will effectuate the assignment of the Sublicense Agreement to TEMPLATE
SOFTWARE in the event of Termination as required in Article XI(E)(3)
and a clause prohibiting any export of the Licensed Product(s) from
the Territory. Any changes to the Sublicense Agreement set forth in
Addendum C shall be submitted to TEMPLATE SOFTWARE for approval, which
such approval shall not be unreasonably withheld, before DISTRIBUTOR
may use such Sublicense License Agreement for a Licensed Product(s).
TEMPLATE SOFTWARE hereby grants DISTRIBUTOR the non-exclusive right to
sublicense Run-time Versions of the Licensed Product(s) for
Applications developed inside the Territory for use outside the
Territory. In no case is the DISTRIBUTOR granted the right to
sublicense Development Versions of the Licensed Product(s) for use
outside the Territory unless the Development Versions are priced at
the prevailing price of the country in which the Development Version
of the Licensed Product(s) will be used and the distributor of record
for that country is compensated for such sale. TEMPLATE SOFTWARE
shall compensate DISTRIBUTOR for SNAP Development Licenses licensed
outside of the Territory for use in the Territory. (License fees
credited shall be based upon the net license fees received by TEMPLATE
SOFTWARE and does not include items identified in Article III C.)
Distributor Agreement 4
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C. Reserved Rights
1. TEMPLATE SOFTWARE reserves the right to market and
license Licensed Products, either directly or through
third parties, for use in the Territory provided the
End User in the Territory is (i) an affiliate of a
multinational corporation to which TEMPLATE SOFTWARE
has licensed products outside the Territory, (ii) a
representative of a governmental body outside of the
Territory, (iii) a customer of a third party vendor
who has acquired the right to market the Licensed
Product(s) pursuant to OEM agreements or VAR
agreements between such third party vendor and
TEMPLATE SOFTWARE to the extent that the sales of the
Licensed Product(s) is part of the sales of
product(s) of the third party or (iv) customers of
UNISYS, EDS, SUN, IBM, Apple, Novell, Sequent,
Taligent or NCR to the extent that the sales of the
Licensed Product(s) is part of the sales of
product(s) of UNISYS, EDS, SUN, IBM, Apple, Novell,
Sequent, Taligent or NCR, and further provided that
the fees received by TEMPLATE SOFTWARE from such
transactions shall be treated as specified in
Addendum N. TEMPLATE SOFTWARE shall not be obligated
hereunder to pay DISTRIBUTOR any moneys for the fees
paid to TEMPLATE SOFTWARE by third parties (including
their affiliates and subsidiaries) defined in (iii)
and (iv) of this Article III, Section C.1. TEMPLATE
SOFTWARE shall reserve the right to enter into
exclusive VAR and OEM Agreements at its sole
discretion.
2. TEMPLATE SOFTWARE reserves all rights not
specifically granted DISTRIBUTOR hereunder. Except
as expressly provided hereunder in connection with
the sublicensing of Licensed Product(s), TEMPLATE
SOFTWARE does not convey any Intellectual Property
Rights to DISTRIBUTOR hereunder unless expressly
provided otherwise herein. DISTRIBUTOR shall have no
right whatsoever to receive, review or otherwise use
or have access to the source code for the Licensed
Product(s). Licensed Products are permitted to be
sublicensed by DISTRIBUTOR only in Object Code form.
ARTICLE IV - DISTRIBUTOR REPRESENTATIONS AND OBLIGATIONS
A. DISTRIBUTOR hereby represents that it will (i) market and license the
Licensed Products and related services on a best efforts basis,
including training, installation assistance, End User Maintenance and
other forms of computer support, to potential customers in the
Territory and (ii) achieve the "Annual Minimum Fees", according to the
Business Plan which will be attached, made a part hereof and updated
annually. If the foregoing representation and undertaking proves to
be untrue at any time during the term of this Agreement, TEMPLATE
SOFTWARE may terminate this Agreement for default as described in
Article XI ("Term and Termination"). Nothing contained herein shall
obligate DISTRIBUTOR to paying TEMPLATE SOFTWARE royalties other than
those based upon actual sales.
B. Execution of Sublicense Agreements - DISTRIBUTOR shall obtain duly
executed Sublicense Agreements for Licensed Products as set forth in
Addendum C, prior to delivery of Licensed Products to its customers.
DISTRIBUTOR shall retain such Sublicense Agreements on file for the
Term of this Agreement and provide TEMPLATE SOFTWARE a copy of each
Sublicense Agreement for the Licensed Product(s) sublicensed in order
that TEMPLATE SOFTWARE can ship the Licensed Product(s) in accordance
with Article V, Section A.
C. DISTRIBUTOR shall not vary the prices for the Licensed Product(s) from
those set forth in the Price List Addendum K without specific written
agreement from TEMPLATE SOFTWARE.
D. Reverse Compiling and Modifying the Licensed Product(s) - Except as
provided in European Community Directive on Protection of Proprietary
Rights in Computer Programs, DISTRIBUTOR shall not modify, reverse
compile or otherwise reverse engineer the Licensed Product(s) or any
part thereof. Any attempted modification, reverse engineering or
reverse compilation of the Licensed Product(s) by DISTRIBUTOR will
void all of the licenses granted to DISTRIBUTOR in this Agreement and
shall cause immediate termination of this Agreement by TEMPLATE
SOFTWARE for default pursuant to Article XI ("Term and Termination").
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E. DISTRIBUTOR agrees to assign, at a minimum, two designated sales
representative and two technical representatives for the Territory for
the Term of this Agreement. DISTRIBUTOR further agrees to add sales
and technical representatives that support the business growth in
accordance with the Business Plan, Addendum L.
F. DISTRIBUTOR shall prepare and submit a Sales Forecast Report (Addendum
M) within thirty (30) days from the calendar quarter end for all orders
executed in the quarter and forecasted for the next quarters.
G. Copies of the Licensed Product(s) - DISTRIBUTOR shall not make copies
of the Licensed Product(s) except to provide a backup or archive copy.
All reproductions shall contain any proprietary or copyright notices
appearing in the Licensed Product(s). DISTRIBUTOR shall be limited to
making no more than two (2) backup copies of the Licensed Product(s).
H. Export of Licensed Products - DISTRIBUTOR shall not have the right to
export any Licensed Product(s) outside the Territory. DISTRIBUTOR
agrees to indemnify, defend, and hold TEMPLATE SOFTWARE harmless from
all claims and cost resulting from a breach of this covenant.
I. Trained Personnel - DISTRIBUTOR shall have its personnel trained
according to Addendum G and shall be responsible for the product
training of End Users and customers within the Territory.
J. DISTRIBUTOR shall be solely responsible for the promotion, marketing,
installation, training, End User Maintenance and technical support of
Licensed Products sublicensed to End Users.
K. DISTRIBUTOR shall be solely responsible and bear the entire expense
for the accurate translation of the Documentation, and marketing
materials into languages other than English, as may be required to
promote and implement the Licensed Product(s) in the Territory.
DISTRIBUTOR shall not be obligated to translate such materials unless
required by its customers or the laws, statutes or regulations imposed
in the Territory. Such translations shall be the sole and exclusive
property of TEMPLATE SOFTWARE and TEMPLATE SOFTWARE shall own any and
all copyrights, trade secrets, trademarks, or service marks therein
("Intellectual Property Rights") DISTRIBUTOR shall cooperate with
TEMPLATE SOFTWARE in helping to secure such Intellectual Property
Rights. DISTRIBUTOR shall have the right to use such translations
only for purposes of promoting and implementing the Licensed
Product(s) to customers in the Territory as provided under this
Agreement. DISTRIBUTOR shall provide TEMPLATE SOFTWARE with copies of
such translations. In the event of conflict between any such
translation and the corresponding English version, the meaning of the
English version shall prevail. DISTRIBUTOR shall indemnify, release
and hold harmless TEMPLATE SOFTWARE against any and all claims
resulting from or arising out of errors, misstatements,
misrepresentations or false claims in any such translations.
L. DISTRIBUTOR shall not make any express or implied representation to
its customers that the Licensed Product(s) functions, performs or is
usable on any equipment other than the equipment listed on Addendum F.
M. DISTRIBUTOR shall conduct End User training only with training
instructors who are Certified by TEMPLATE SOFTWARE in accordance with
Addendum O and only with TEMPLATE SOFTWARE's training materials (or
TEMPLATE SOFTWARE's approved translated training materials.)
N. DISTRIBUTOR represents and warrants that it is and at all times during
the Term of this Agreement shall remain in good financial condition,
solvent and able to pay its bills when due. From time to time, on
reasonable notice by TEMPLATE SOFTWARE, DISTRIBUTOR shall furnish
financial reports as necessary to determine DISTRIBUTOR's financial
condition.
ARTICLE V - SUPPORT
A. TEMPLATE SOFTWARE shall use its best efforts to ship to the
DISTRIBUTOR the English version of the Licensed Products and related
Documentation within five (5) business days after receiving copy of an
executed Sublicense Agreement between the DISTRIBUTOR and an End User.
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B. Training - TEMPLATE SOFTWARE will provide training for DISTRIBUTOR's
personnel in accordance with Addendum G. Such training will take place
at TEMPLATE SOFTWARE's offices.
C. Technical Assistance - TEMPLATE SOFTWARE shall provide DISTRIBUTOR
with reasonable amounts of technical assistance with the Licensed
Product(s) by telephone, fax or E-mail during normal business hours of
TEMPLATE SOFTWARE USA and during normal business hours in the
Territory, in order that DISTRIBUTOR may acquire an understanding of
the Licensed Product(s)'s functions, operations and applications. It
is understood that over time the DISTRIBUTOR is expected to learn and
be capable of handling technical issues independently. Emergency
situations can be handled per mutual agreement.
D. Maintenance of Licensed Product(s) - TEMPLATE SOFTWARE will provide
DISTRIBUTOR maintenance of the Licensed Product(s) licensed pursuant
to Article III.A. for the Term of this Agreement in accordance with
the terms in Addendum H.
E. Updates to Licensed Product(s) - TEMPLATE SOFTWARE will provide
DISTRIBUTOR Updates during the Term of this Agreement to the Licensed
Product(s) as such Updates are officially released. TEMPLATE SOFTWARE
shall only provide support for the current version of the Licensed
Product(s) after the official release of such Updates and the previous
version of the Licensed Product(s) until three months after the
official release of the current version. TEMPLATE SOFTWARE shall ship
to the DISTRIBUTOR one copy of Updates for each End User who is under
a current End User Maintenance agreement.
F. TEMPLATE SOFTWARE SHALL NOT HAVE ANY RESPONSIBILITY TO PROVIDE
TECHNICAL ASSISTANCE, INSTALLATION, END USER MAINTENANCE OR SUPPORT
SERVICES DIRECTLY TO ANY END USER OF A LICENSED PRODUCT(S).
G. Development Plans and Suggestions - TEMPLATE SOFTWARE will inform
DISTRIBUTOR generally about all development plans for the Licensed
Product(s). DISTRIBUTOR is encouraged to make written suggestions for
future changes or enhancements to the Licensed Product(s). TEMPLATE
SOFTWARE will evaluate all such suggestions, but does not guarantee
that any of the suggestions will be implemented in future Updates.
TEMPLATE SOFTWARE reserves the right to modify, replace or add to the
Licensed Product(s) in its discretion at any time.
H. Marketing Materials - TEMPLATE SOFTWARE shall provide DISTRIBUTOR and
DISTRIBUTOR shall pay for copies of marketing materials as may be from
time to time specified in the then current Business Plan by mutual
agreement of TEMPLATE SOFTWARE and DISTRIBUTOR at the prices set forth
in Addendum I. DISTRIBUTOR shall not copy such marketing materials for
distribution. All marketing materials prepared and translated into
local languages by DISTRIBUTOR shall be reviewed and approved by
TEMPLATE SOFTWARE before their release. DISTRIBUTOR shall be
responsible for the entire cost related to the language translation of
marketing materials.
ARTICLE VI - PRICES, PAYMENT AND REPORTING
A. Prices - A copy of TEMPLATE SOFTWARE's current suggested DISTRIBUTOR
list price for the Licensed Product(s) is based upon TEMPLATE
SOFTWARE's International Price List as set forth in Addendum K.
TEMPLATE SOFTWARE reserves the right to vary its International Price
List for the Licensed Product(s) no more frequently than every six (6)
months. Any change in TEMPLATE SOFTWARE's International Price List
shall be deemed as a revision to Addendum K forty-five (45) days after
such change is published by TEMPLATE SOFTWARE. Orders based upon and
substantiated by written price quotes provided to End-Users by
DISTRIBUTOR prior to any notice of price change shall be honored for
ninety (90) days after such change is published by TEMPLATE SOFTWARE.
B. Fees - DISTRIBUTOR shall pay TEMPLATE SOFTWARE in accordance with the
DISTRIBUTOR Fee Schedule in Addendum J (i) a License Fee for each
Licensed Product sublicensed by and shipped to DISTRIBUTOR, (ii) a
Maintenance Fee for each Licensed Product(s) maintained by
DISTRIBUTOR, and (iii) a Training Fee for each training course given
by DISTRIBUTOR.
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C. Orders and Invoices - DISTRIBUTOR shall place Purchase Orders with
TEMPLATE SOFTWARE to cover Licensed Product(s), maintenance and
training courses which DISTRIBUTOR intends to sublicense to End Users.
TEMPLATE SOFTWARE shall invoice DISTRIBUTOR immediately upon shipment
of the Licensed Product(s) to fulfill such Purchase Orders. These
Purchase Orders shall include the following information:
1. For new licenses:
a. Name and address and authorized contact of
End User;
b. Licensed Product identification;
c. Platform type (hardware and operating
system);
d. Number of Run-Time Versions and Development
Versions sublicensed;
e. License Fees and Maintenance Fees payable;
f. Copy of the executed Sublicense Agreement or
License Schedule between the DISTRIBUTOR and
End User; and
g. Specific shipping instructions including any
proforma invoice requirements.
2. For End User Maintenance:
a. Name of End-User;
b. Licensed Product(s) maintained (including
current hardware/operating system
configuration);
c. Maintenance Fees payable; and
d. Maintenance period.
3. For Training Courses:
a. Dates of Training Courses;
b. Training Fees payable; and
c. Number of attendees and training sets
required.
D. Sales Forecast Report - Within the first five (5) days of every
quarter, DISTRIBUTOR shall submit a Sales Forecast Report by means of
facsimile transmission. Such report shall include a projection of
potential revenue for the quarter. Information such as the names and
locations of prospects, potential order type, percentage of confidence
and estimated time of order achievement, hardware platform, and order
revenue value of the potential order is required.
F. Payment of Fees - DISTRIBUTOR shall pay invoices on the 30th day after
the end of the month in which the invoice was issued.
G. Shipping and Handling - DISTRIBUTOR shall pay TEMPLATE SOFTWARE for
Shipping and Handling in connection with the shipping of DISTRIBUTOR
requested Licensed Products and Documentation.
H. Currency - All payments shall be made payable in US dollars to
TEMPLATE SOFTWARE by wire transfer to TEMPLATE SOFTWARE's designated
bank as such designated bank may be changed upon ten (10) days written
notice to DISTRIBUTOR.
I. Late Payments - Late payments shall accrue interest at one and one
half percent per month, or the maximum rate of interest allowed by
United States law, if less.
J. Taxes, Tariffs and Duties - DISTRIBUTOR shall be solely responsible
for all sales and use taxes, VAT taxes, duties, tariffs, and other
taxes on goods or services furnished under this Agreement, provided
that TEMPLATE SOFTWARE shall be responsible for its own franchise and
income taxes. DISTRIBUTOR shall indemnify and hold harmless TEMPLATE
SOFTWARE from and against any taxes, duties, tariffs and penalties
levied by or on behalf of any taxing entity or governmental authority
with respect to the DISTRIBUTOR's obligations hereunder.
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J. Expenses of DISTRIBUTOR - DISTRIBUTOR is solely responsible for any
expenses it incurs in the performance of its responsibilities under
this Agreement.
K. Audit - TEMPLATE SOFTWARE or its designee may audit DISTRIBUTOR's
books and records pertaining to the licensing of the Licensed
Product(s) and payment of applicable fees, during normal office hours,
at its own expense, on ten (10) days notice.
ARTICLE VII - WARRANTIES, LIMITATIONS OF LIABILITY, AND REMEDIES
A. Warranty of Title and Authority - TEMPLATE SOFTWARE warrants that it
owns all rights, title and interest in the Licensed Product(s), and
has full power and authority to fulfill its obligations under this
Agreement.
B. Limited Warranty of Performance - TEMPLATE SOFTWARE further warrants
for a period of ninety (90) days from the execution of this Agreement
that the Licensed Product(s) will perform in accordance with its
specifications as contained in the Documentation.
C. Disclaimer of Warranties - EXCEPT FOR THE EXPRESS WARRANTIES STATED IN
SECTIONS VII(A) AND (B), TEMPLATE SOFTWARE DISCLAIMS, AND DISTRIBUTOR
HEREBY WAIVES, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE REGARDING THE LICENSED PRODUCT(S) AND
DOCUMENTATION. TEMPLATE SOFTWARE DISCLAIMS AND DISTRIBUTOR HEREBY
WAIVES, RELEASES, INDEMNIFIES AND AGREES TO HOLD HARMLESS TEMPLATE
SOFTWARE FROM ANY LIABILITY OR RESPONSIBILITY TO DISTRIBUTOR OR ANY
CUSTOMER OF DISTRIBUTOR FOR A LICENSED PRODUCT(S) THAT IS MODIFIED BY
DISTRIBUTOR OR ANY CUSTOMER OF DISTRIBUTOR IN ANY WAY.
D. The parties expressly agree that the United Nations Convention on
Contracts for the International Sale of Goods shall not apply to this
Agreement.
E. Limitation of Remedies - In the event of a breach of the express
warranties under this Agreement, DISTRIBUTOR's exclusive remedy shall
be prompt repair or replacement by TEMPLATE SOFTWARE of defective
Licensed Product(s) or, at TEMPLATE SOFTWARE's option, a refund of all
amounts paid by DISTRIBUTOR to TEMPLATE SOFTWARE for defective
Licensed Product(s) upon return of all copies of them to TEMPLATE
SOFTWARE.
F. Exclusion of Consequential Damages - IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES,
INCLUDING LOSS OF PROFITS, OR ANY CAUSE OF ACTION ARISING UNDER OR
RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR STRICT
LIABILITY, EXCEPT IN ANY ACTION BASED ON THE UNAUTHORIZED DISCLOSURE,
OR USE OF CONFIDENTIAL INFORMATION OR TRADE SECRETS OF TEMPLATE
SOFTWARE; OR ANY ACTION BASED ON TEMPLATE SOFTWARE'S COPYRIGHTS,
PATENTS, TRADEMARKS, TRADE SECRETS, TRADE NAMES, OR OTHER PROPRIETARY
RIGHTS. IN NO EVENT SHALL TEMPLATE SOFTWARE BE LIABLE TO ANY
END-USER, INSOFAR AS THE SUBLICENSE AGREEMENT EFFECTIVELY SO PROVIDE,
FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING,
WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF
DELIVERY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR
LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE.
G. DISTRIBUTOR warrants, covenants and agrees that, in the performance of
this Agreement and in connection with the sales of Licensed
Product(s), it has not and will not in the future, directly or
indirectly offer, pay, promise to pay, or authorize the payment of any
money or offer, promise to give or authorize the giving of anything of
value to:
1. any government official, any political party or
official thereof, or any candidate for political
office; or
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2. any other person while knowing or having reason to
know that all or a portion of such money or thing of
value will be offered, given or promised directly or
indirectly, to any such official, to any such
political party of official thereof, or to any
candidate for political office:
for the purpose of
1. influencing any action or decision of such official,
party or official thereof, or candidate in his or its
official capacity, including a decision to fail to
perform his or its official functions;
2. inducing such official, party or official thereof, or
candidate to use his or its influence with any
government or instrumentality thereof to effect or
influence any act or decision of such government or
instrumentality;
in order to assist DISTRIBUTOR in obtaining or retaining
business for or with or directing business to any person.
ARTICLE VIII - INTELLECTUAL PROPERTY
A. Ownership - All Licensed Product(s) and Updates shall be the sole
property of TEMPLATE SOFTWARE, including (without limitation)
ownership rights to patents, copyrights, trademarks, trade secrets and
all other property interests incidental thereto. All Licensed
Product(s), in whole or in part, shall be marked with such copyright,
patent, or other notices, proprietary legends, or restrictions as
TEMPLATE SOFTWARE may require. DISTRIBUTOR does not have the right to
transfer, and shall not attempt to transfer, TEMPLATE SOFTWARE
ownership to the Licensed Product(s).
B. Trademark -
1. This Agreement does not grant DISTRIBUTOR any right,
title, interest, or license in or to any trademark or
servicemark of TEMPLATE SOFTWARE, except as may be
approved in writing by TEMPLATE SOFTWARE.
2. DISTRIBUTOR shall have the right to register the
names "Template Software Benelux" and "SNAP" in the
Territory provided upon termination or expiration of
this Agreement the trademark rights be immediately
assigned to TEMPLATE SOFTWARE.
C. Noncompetition - DISTRIBUTOR shall act as a direct distributor for any
product that is competitive with, or that performs the same or
comparable functions as the Licensed Product(s).
ARTICLE IX - INDEMNITIES
A. By TEMPLATE SOFTWARE - TEMPLATE SOFTWARE hereby indemnifies and holds
harmless DISTRIBUTOR from and against any claims, actions, or demands
alleging that the Licensed Product(s) infringe upon any U.S. patent,
trademark, copyright, or other intellectual property right of any
third party under United States law or any state law thereof.
DISTRIBUTOR shall permit TEMPLATE SOFTWARE to replace or modify any
affected License Product(s)s so as to avoid infringement, or to
procure the right for DISTRIBUTOR to continue to use and remarket such
items. If neither alternative is reasonably possible, the infringing
items shall be returned to TEMPLATE SOFTWARE and TEMPLATE SOFTWARE's
sole liability to DISTRIBUTOR shall be to refund amounts paid for them
by DISTRIBUTOR. TEMPLATE SOFTWARE shall have no obligation and
DISTRIBUTOR shall indemnify and hold harmless TEMPLATE SOFTWARE under
this Agreement with respect to claims, actions, or demands alleging
infringement which arise by reason of the combination of non-infringing
items with any items not supplied by TEMPLATE SOFTWARE.
B. By DISTRIBUTOR - DISTRIBUTOR hereby indemnifies and holds harmless
TEMPLATE SOFTWARE from and against any claims, actions, or demands
arising with respect to this Agreement, including but not limited to
actions that arise due to DISTRIBUTOR's misrepresentation of the
Licensed Product(s) or
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its relationship with TEMPLATE SOFTWARE, with the sole exception of
those matters for which TEMPLATE SOFTWARE bears responsibility under
Article IX, Section A.
C. Conditions - the foregoing indemnities are conditioned on prompt
written notice of any claim, action, or demand for which indemnity is
sought, complete control of the defense and settlement thereof by the
indemnifying party, and cooperation of the other party in such defense
or settlement.
ARTICLE X - CONFIDENTIALITY
A. Safeguarding Confidential Information - DISTRIBUTOR shall ensure that
unauthorized parties do not have access to Confidential Information.
DISTRIBUTOR shall prevent Confidential Information from being copied
or stolen. DISTRIBUTOR shall ensure that the obligation of
confidentiality is adhered to fully by any customer of DISTRIBUTOR.
DISTRIBUTOR shall limit access to Confidential Information to those
employees of DISTRIBUTOR having a specific need to know. DISTRIBUTOR
shall obtain written agreements from such employees and customers of
DISTRIBUTOR to maintain the confidentiality of the Confidential
Information. DISTRIBUTOR shall notify TEMPLATE SOFTWARE immediately
of any violation of a Licensed Product license or of any disclosure of
Confidential Information, and shall cooperate fully with TEMPLATE
SOFTWARE to cure the violation or disclosure. This Article X shall
survive termination or expiration of this Agreement.
B. Remedies - DISTRIBUTOR agrees that in the event of a breach or
threatened breach by DISTRIBUTOR, including its agents, directors, or
employees or any customer of DISTRIBUTOR, of this Article, TEMPLATE
SOFTWARE may have no adequate remedy in damages and shall be entitled
to an injunction against such breach, in addition to any other legal
or equitable remedies available to it. Any breach of this Article by
DISTRIBUTOR's agents, directors, or employees or any customer of
DISTRIBUTOR shall be the joint and several responsibility of
DISTRIBUTOR.
C. Unfair Competition - DISTRIBUTOR specifically and without reservation
agrees that its failure to observe its confidentiality, intellectual
property and indemnification obligations under this Agreement shall
constitute unfair competition and shall entitle TEMPLATE SOFTWARE to
immediate relief for breach as set forth herein.
ARTICLE XI - TERM AND TERMINATION
A. Term - This Agreement shall become effective on the date DISTRIBUTOR
and TEMPLATE SOFTWARE has executed it (whichever is later) and shall
remain in effect until December 31, 1995 ("Base Term") unless extended
or terminated as provided otherwise hereunder. Prior to the
expiration of the Base Term or the Extended Term, TEMPLATE SOFTWARE
shall have the right (but not the obligation) to renew this Agreement
for additional one (1) year periods or, if agreed, for a different
period. Any such renewal period shall be ("Extended Term").
B. Default - This Agreement may be terminated by TEMPLATE SOFTWARE for
default, if DISTRIBUTOR fails to perform any of its material
obligations under this Agreement including, but not limited to,
failure to achieve eighty-five percent (85%) of the Annual Minimum
Royalties for any given calendar year, nonpayment of any moneys due
hereunder, or misinterpretation of the Licensed Product(s) or TEMPLATE
SOFTWARE to the customer, by submitting notice in writing to
DISTRIBUTOR of such material failure, provided the material failure is
not corrected by DISTRIBUTOR within thirty (30) days from such notice.
TEMPLATE SOFTWARE may terminate this Agreement immediately, by written
notice to DISTRIBUTOR, for any subsequent failure of DISTRIBUTOR to
perform any of its material obligations under this Agreement.
TEMPLATE SOFTWARE may terminate this Agreement immediately, by written
notice to DISTRIBUTOR, if DISTRIBUTOR has achieved eighty-five percent
(85%) of the Annual Minimum Royalties for any given calendar year and
has failed to achieve one-hundred percent (100%) of such Annual
Minimum Royalties within six (6) months of the subsequent year.
TEMPLATE SOFTWARE may terminate this Agreement immediately, by written
notice to DISTRIBUTOR, if DISTRIBUTOR modifies, reverse engineers or
reverse compiles the Licensed Product(s).
Distributor Agreement 11
12
C. Bankruptcy, Reorganization or Liquidation - This Agreement may be
terminated by either party, if the other party becomes subject to any
voluntary or involuntary reorganization or liquidation proceedings and
as a consequence of such proceedings this Agreement is repudiated.
D. Convenience - Either party-may terminate this Agreement for
convenience upon at least one-hundred eighty (180) days prior written
notice to the other party.
E. Rights Upon Termination or Expiration of Term
1. Upon expiration of this Agreement or termination of
this Agreement by TEMPLATE SOFTWARE, DISTRIBUTOR
shall cease to use market, promote and sublicense the
Licensed Product(s).
2. Upon termination of this Agreement by DISTRIBUTOR
under Section C of this Article, DISTRIBUTOR rights
shall be defined in accordance with Section F -
Escrow.
3. Upon any termination or expiration of this Agreement,
except for termination by DISTRIBUTOR under Section C
of this Article, TEMPLATE SOFTWARE shall assume full
responsibility for the licensing or sublicensing of
the Licensed Products and the provision of technical
and other support services to End-Users and shall be
entitled to all fees for the use of the Licensed
Products and the furnishing of such services. In
furtherance thereof, DISTRIBUTOR shall be deemed to
have assigned to TEMPLATE SOFTWARE, or such other
person or entity as TEMPLATE SOFTWARE directs, all of
its rights and obligations under any and all license
agreements that DISTRIBUTOR has entered into with
End-Users, and DISTRIBUTOR shall deliver to TEMPLATE
SOFTWARE, or to such other person, a duly executed
written assignment of such rights, together with such
other documents as may be necessary or advisable in
the reasonable opinion of TEMPLATE SOFTWARE to
effectuate such assignment.
4. No termination or expiration of this Agreement shall
affect the obligation of DISTRIBUTOR to make fee
payments which have become due to TEMPLATE SOFTWARE
prior to the effective date of such termination or
expiration.
F. Escrow - TEMPLATE SOFTWARE has and shall continue to deposit all
current versions of the Licensed Product(s) in escrow for the purpose
of maintaining a secure backup copy of the Source Code for the
protection of TEMPLATE SOFTWARE and Licensed Product(s) licenses.
Upon written request from DISTRIBUTOR, TEMPLATE SOFTWARE or its
authorized escrow agent shall release to DISTRIBUTOR one copy of the
most current version of the Source Code (and TEMPLATE SOFTWARE will
provide DISTRIBUTOR any informal documentation) for the Licensed
Product(s) upon the occurrence of one of the following events:
1. The cessation for a period of more than thirty (30)
days of all active business operations by TEMPLATE
SOFTWARE, except as provided below.
2. The filing of any bona-fide petition under the
provisions of the Federal Bankruptcy Act, or similar
federal or state statute, by or against TEMPLATE
SOFTWARE, except as provided below.
3. The application for appointment of a receiver for or
the making of a general assignment for the benefit of
creditors by TEMPLATE SOFTWARE, except as provided
below.
4. The transfer, disposition or condemnation of all or
substantially all of the assets of TEMPLATE SOFTWARE,
by whatever means accomplished, to a party not
intending to continue TEMPLATE SOFTWARE's computer
software operations.
Notwithstanding the occurrence of any of the events specified in 1.,
2., or 3. of this Section, TEMPLATE SOFTWARE or its escrow agent shall
not be required to deliver the requested Licensed Product(s) Source
Code to DISTRIBUTOR if TEMPLATE SOFTWARE or any other party has made
arrangements for the continued maintenance and support of the Licensed
Product(s).
Distributor Agreement 12
13
DISTRIBUTOR may use Source Code received pursuant to this Section only
as necessary to modify, maintain and update the Licensed Product(s).
Receipt by DISTRIBUTOR of Licensed Product(s) Source Code pursuant
this Section does not affect the proprietary rights of TEMPLATE
SOFTWARE in the Licensed Product(s) or Documentation and does not
alter DISTRIBUTOR's obligation under this Agreement to protect
Confidential Information.
G. Waiver of Default - An Event of Default shall only be waived in
writing. Such writing must describe the Event of Default being
waived, state that the Event of Default is being waived and bear the
signature of the party waiving the Event of Default.
H. Waiver - This Agreement shall be only terminated or renewed as
expressly provided hereunder. DISTRIBUTOR hereby waives any and all
rights under the laws of the countries in the Territory or otherwise
to automatic renewal of this Agreement, extended termination notice or
the payment of damages, claims or costs for termination of this
Agreement by TEMPLATE SOFTWARE. DISTRIBUTOR shall indemnify, release
and hold harmless TEMPLATE SOFTWARE from any and all costs, claims and
liabilities resulting from or arising out of termination of this
Agreement by TEMPLATE SOFTWARE except as expressly provided hereunder.
I. Consequential Damages - TEMPLATE SOFTWARE shall not be liable to
DISTRIBUTOR for any consequential, exemplary, incidental or punitive
damages, regardless of whether TEMPLATE SOFTWARE has been advised of
the possibility of such damages in advance or whether such damages are
reasonably foreseeable.
ARTICLE XII - INDEPENDENT RELATIONSHIP
DISTRIBUTOR shall perform under this Agreement only as an independent
contractor. DISTRIBUTOR shall have the sole obligation to supervise, manage,
contract, direct, procure, perform or cause to be performed its obligation
under this Agreement. Nothing set forth in this Agreement shall be construed
to create the relationship of principal and agent between TEMPLATE SOFTWARE and
DISTRIBUTOR. DISTRIBUTOR shall not act or attempt to act or represent itself,
directly or by implication, as an agent of TEMPLATE SOFTWARE or in any manner
assume or create, or attempt to assume or create, any obligation on behalf of,
or in the name of TEMPLATE SOFTWARE. DISTRIBUTOR shall be solely responsible
for all taxes, duties, tariffs and insurance of its activities under this
Agreement, including import duties, VAT taxes, franchise taxes,
employment-related taxes, federal, state, and local income taxes, and
liability, health, and disability insurance. DISTRIBUTOR hereby waives and
agrees to indemnify and hold harmless TEMPLATE SOFTWARE against any claims and
costs resulting from a breach of this Article XII.
ARTICLE XIII - NOTICES
All notices or other communications required or contemplated herein shall be
deemed received (i) upon personal delivery in writing, (ii) upon confirmed
receipt of a wire communication (telex, twx, datafax, etc.), (iii) one day after
delivery by express courier, or (iv) three days after mailing by U.S. mail,
return receipt requested, to the other party's Contract Administrator at the
address below. Either party may change its address for notification purposes
by written notice to the other party.
A. For TEMPLATE SOFTWARE
1. Contract Administrator:
Director of Finance & Contracts, 00000 Xxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000.
2. Technical Liaison:
Director of Customer Support, 00000 Xxxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000.
Distributor Agreement 13
14
B. For DISTRIBUTOR
1. Contract Administration:
-----------------------------------------------------------
2. Technical Liaison:
-----------------------------------------------------------
C. The Technical Liaison may clarify, explain, provide further details,
handle necessary technical matters, implement technical aspects, and
develop administrative procedures, but shall have no authority to
change any of the terms of this Agreement.
ARTICLE XIV - MISCELLANEOUS
A. Force Majeure - Neither party is liable for delay or failure in
performance resulting from acts beyond the reasonable control of such
party, including, but not limited to, any acts or omissions of any
government or governmental authority, natural disaster, act of a
public enemy, riot, sabotage, disputes or differences with workmen,
acts of terrorism, power failure, delays in transportation, acts of
God, or any events reasonable beyond the control of the parties.
B. Disputes - Any disputes arising under this Agreement relating to
payment shall be finally settled under the Rules of Conciliation and
Arbitration of the International Chamber of Commerce by one or more
arbitrators appointed in accordance with the said rules. In the event
of litigation or arbitration under this Agreement, the prevailing
party shall be entitled to recover its reasonable attorney's fees.
C. Assignment - Any assignments hereunder by DISTRIBUTOR without the
written consent of TEMPLATE SOFTWARE shall be void.
D. Severability - In the event that any provision hereof is found invalid
or unenforceable pursuant to judicial decree or decision, the
remainder of this Agreement shall remain valid and enforceable
according to its terms. WITHOUT LIMITING THE FOREGOING, IT IS
EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS
AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF
WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE
SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS
SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT
ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL
PURPOSE, ALL OTHER LIMITATIONS OF LIABILITY AND EXCLUSION OF DAMAGES
SET FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT.
E. Survival - The parties' rights and remedies relating to payment,
indemnification, liability and confidential and proprietary
information shall survive termination or expiration of the term of
this Agreement.
F. Choice of Law - This Agreement shall be governed by law of the
Commonwealth of Virginia, USA except for its rules on conflicts of
laws. Venue shall be in the Commonwealth of Virginia, United States
of America.
G. Compliance With Law - DISTRIBUTOR shall comply with all applicable
country, federal, state, and local laws and regulations in performing
its duties hereunder and in any of its dealings with respect to the
Licensed Product(s).
H. No Third Party Beneficiaries - The parties do not intend this
Agreement to create any enforceable rights by any third party.
I. Waiver - The waiver by either party of any provision or breach of this
Agreement shall not waive any other term or succeeding breach. Any
such waiver must be in writing.
Distributor Agreement 14
15
J. DISTRIBUTOR may transfer all rights hereunder in this Agreement to
Template Software Benelux b.v., which is in the process of
incorporation, represented by its founder RCC Informatieservices b.v.,
provided after incorporating, such incorporation is approved by
TEMPLATE SOFTWARE.
K. Entire Agreement - This Agreement, including its Addenda, is the
complete, final, and exclusive understanding between the parties
relating to its subject matter. This Agreement may not be modified or
supplemented except in a writing signed by both parties.
Template Software, Inc.
SIGNATURE: /s/ E. L. XXXXXX
----------------------------------
NAME AND TITLE: E. L. Xxxxxx, Chief Executive Officer
-----------------------------
DATE: August 12, 1993
---------------------------------------
DISTRIBUTOR
SIGNATURE: [SIG]
----------------------------------
NAME AND TITLE:
-----------------------------
DATE:
---------------------------------------
Distributor Agreement 15
16
[RCC LETTERHEAD]
Template Software, Inc.
Attn. E.L. Xxxxxx
00000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx
Xxxxxxxx 00000-0000
XXX
Ons kenmerk Inlichtingen bij Bijlagen Datum
U/95002112 X.X. xxx Xxxxx 10 maart 1995
Uw brief Telefoon Onderwerp
3100 Distributor Agreement
Dear Lin,
Template Software Benelux b.v. has been incorporated and acts as the
distributor for the Benelux countries for more than one year now.
RCC wishes to transfer all rights of the Distributor Agreement, signed August,
1993, to Template Benelux b.v. according to ARTICLE XIV, Section J during the
period Template Software Benelux b.v. executes these activities.
Upon receival of the signed copy, we expect all communications with regards to
the Distributor Agreement or other business or technical issues to be handled
via Template Software Benelux b.v.
Furthermore we like to renew the Distributor Agreement according to ARTICLE XI,
Section A for at least one year, so it remains in effect until December 31,
1996.
Whenever Template Software Benelux b.v. terminates these activities all rights
of the Distributor Agreement return automatically to RCC informatieservices
b.v.
We would be pleased if you would sign the three copies of this letter and
return two of them to us.
Kind regards,
for approval,
/s/ X.X. XXX XXXXX /s/ A. VELSTRA /s/ E.L. XXXXXX
------------------ -------------- ---------------
X.X. xxx Xxxxx A. Velstra E.L. Xxxxxx
director Marketing director Template Software Inc.
& Sales Template Software
RCC informatie- Benelux b.v.
services b.v.
17
[TEMPLATE SOFTWARE LETTERHEAD]
May 31, 1996
Mr. A. Velstra
Contemplate BV I.O.
per address Template Software Benelux X.X.
Xxxxxxxxxx 00
0000 XX Xxxxxxxxxxx
Xxx Xxxxxxxxxxx
Dear Mr. Velstra,
Based on the transfer of ownership of all of the Template Software Benelux B.V.
shares from RCC Information Services B.V. to Contemplate B.V.I.O., a start up
company owned by A. Velstra, now Director of Template Software Benelux B.V., we
confirm the following:
Template Software, Inc. hereby approves and authorizes the transfer of the
existing Distributor Agreement from RCC Information Services B.V. to
Contemplate B.V.I.O.
Template Software, Inc. and Contemplate B.V.I.O. hereby agree to enter into a
new Distributor Agreement for a three (3) year period ending December 31, 1999
on or before December 31, 1996 with (i) substantially similar terms to the
current Distributor Agreement, (ii) Annual Minimum Royalties, exclusive of
maintenance royalties, according to Addendum L equal to $175,000 - 1997,
$225,000 - 1998 and $275,000 - 1999, (iii) an option for Template Software Inc.
to purchase all or part of the shares in Template Software Benelux B.V. at a
fair and reasonable price if Template Software, Inc. decides to go public, or
if the parties agree that it is of mutual benefit, and (iv) the elimination of
language agreed to in the RCC letter dated March 10 1996: "whenever Template
Software Benelux B.V. terminates these activities all rights of the Distributor
Agreement return automatically to RCC Information Services B.V.".
Please sign below and return a copy to me for our files.
Regards, Agreed:
/s/ E. I. FEARCO /s/ A. VELSTRA
---------------- --------------
E. I. Fearco A. Velstra
Chief Executive Officer Managing Director
Template Software, Inc. Template Software Benelux B.V.
