SOFTWARE REMARKETING AND RESELLING AGREEMENT
This Software Remarketing and Reselling Agreement
("Agreement") is made effective September 1, 1998 by and between The Netplex
Group, Inc., a New York corporation ("Netplex") and Applied Intelligence Group,
Inc., an Oklahoma corporation ("viaLink").
WHEREAS, viaLink is the owner of a certain software product
known as ChainLink(TM) which viaLink uses in its technical consulting business
(the "Licensed Software");
WHEREAS, Netplex has paid viaLink substantial consideration
for viaLink's technical consulting business, and Netplex desires to secure a
license to remarket and resell the Licensed Software for use in the technical
consulting business;
NOW THEREFORE, the parties agree as follows:
A. Definitions.
1. Licensed Software. The term "Licensed Software" means any copy of the
source code or object code version of the proprietary computer
software known as ChainLink(R)and all Enhancements to such software
and any and all Derivative Works or compilations based on or
incorporating said software.
2. Enhancements. The term "Enhancements" shall refer to all modifications
to the Licensed Software of any kind (including Derivative Works), if
any, made by either party to this Agreement. viaLink retains the
ownership rights to and in any Enhancements.
3. Derivative Work. The term "Derivative Work" means a work created by
Netplex and based on or incorporating the Licensed Software and/or the
Documentation, including but not limited to translations,
abridgements, condensations, improvements, updates, enhancements, or
any other form in which the Licensed Software and/or the Documentation
may be recast, transformed, adapted, or revised. viaLink retains the
ownership rights to and in any Derivative Works.
4. Documentation. The term "Documentation" means the manuals and/or other
support documents for the Licensed Software prepared by viaLink.
5. Customer. The term "Customer" means any end user to whom Netplex or
one of its sublicensees sublicenses an object copy of the Licensed
Software or Derivative Work.
6. Term. The term "Term" shall have the meaning set forth in Section C of
this Agreement.
7. Affiliate. The term "Affiliate" shall have the same meaning as set
forth in the Asset Acquisition Agreement.
8. Control. The term "Control" shall have the same meaning as set forth
in the Asset Acquisition Agreement.
9. Sublicense Agreement. The term "Sublicense Agreement" means a contract
between Netplex and a Customer whereby the Customer is granted the
right to use all or a part of an object code version of the Licensed
Software or Derivative Works.
10. Asset Acquisition Agreement. The term "Asset Acquisition Agreement"
shall refer to the Asset Acquisition Agreement executed between the
parties as of August 31, 1998, as amended.
11. Earn-Out Agreement. The term "Earn-Out Agreement" shall refer to the
Earn-Out Agreement, which was executed between the parties pursuant to
the Asset Acquisition Agreement, and any amendments thereto.
X. Xxxxx of License.
1. Subject to the terms of this Agreement, viaLink hereby grants to
Netplex for the Term of this Agreement, the nonexclusive,
nontransferable license to use, copy and distribute throughout the
world the Licensed Software, the Documentation, and to modify the
Licensed Software and Documentation to create Derivative Works. During
the Term of this Agreement, viaLink and any of its subsidiaries,
Affiliates, successors or assigns (except as hereinafter stated) shall
not, directly or indirectly, alone or as a partner, partial owner,
consultant, or agent (of any other corporation, partnership or other
business organization), engage in the sale, use or delivery of
Chainlink(R) to the retail and distribution industries other than as
is reasonably necessary for the sale, licensing, installation,
integration, use, implementation and support of viaLink products and
services. viaLink and Netplex agree that the viaLink business is
defined as substantially building, marketing and implementing
proprietary software products, information content and related
services to facilitate electronic commerce. Subject to these
limitations, viaLink specifically reserves the right to itself, its
agents and its successors and assigns the limited right to license,
use, copy and sublicense Chainlink(R), but only to the extent
reasonably necessary in the sale, licensing, installation,
integration, use, implementation and support of viaLink products and
services.
2. Subject to the terms of this Agreement, viaLink hereby grants to
Netplex for the Term of this Agreement the nonexclusive,
nontransferable right to sublicense to Customers throughout the world
an executable version or object library version of the Licensed
Software, the Documentation, and/or any Derivative Works. The rights
granted hereunder also include the right of Netplex to grant
permission to its sublicensees to also market and grant sublicenses in
and to Chainlink(R), provided that such sublicensees execute a
sublicense agreement satisfactory to viaLink.
3. Subject to the terms of this Agreement, viaLink hereby grants to
Netplex for the Term of this Agreement the right to create
Enhancements and/or Derivative Works, provided however, that viaLink
retains all ownership rights in and to any such Enhancements and
Derivative Works.
4. Subject to the terms of this Agreement, viaLink hereby grants to
Netplex during the Term of this Agreement, the right to use the
Chainlink(R)trademark owned by viaLink. Such trademark shall only be
used by Netplex in conjunction with the rights granted in this
Agreement in the following form: "Chainlink(R)". Netplex shall not use
said trademark in any other form without the prior, written consent of
viaLink.
E. Term. The term of this Agreement shall begin on September 1, 1998 and
end on December 31, 2003, unless earlier terminated pursuant to the
terms hereof. Notwithstanding anything else to the contrary herein, it
is agreed and understood that this Agreement shall automatically
terminate if the Closing of the Asset Acquisition Agreement does not
occur, as such Closing is defined in such Asset Acquisition Agreement
as amended.
F. Fees and Payments.
1. Sublicense Fee. In return for Netplex's maintenance and support
obligations hereunder, viaLink shall not be entitled to any Sublicense
fees for the first 100 Sublicenses to Netplex's customers during each
year of this Agreement. For each Sublicense in excess of 100 each year
of this Agreement, within thirty (30) days after delivery of a copy of
the executable version or object library version of the Licensed
Software or Derivative Work to a properly sublicensed Customer,
Netplex shall pay viaLink the sum of $2,500 per Sublicense.
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2. Returns. viaLink will refund to Netplex any sublicense fees paid to
viaLink if the Customer returns all Licensed Software, Documentation,
and Derivative Works to Netplex, and Netplex returns to the Customer
all sublicense fees paid by the Customer to Netplex. Such refund will
be made by viaLink within thirty (30) days after receipt of full
documentation substantiating the return of the Licensed Software,
Documentation, and Derivative Works.
3. Taxes. Netplex will pay all taxes of any type that are imposed on this
Agreement or on the use, modification or sublicensing of the Licensed
Software or Derivative Works by Netplex.
4. Late Charges. Any payment or part of a payment that is not paid when
due shall bear interest at the rate of 1.5% per month from its due
date until paid.
5. Records and Audit. Netplex shall maintain accurate records relating to
the copying, modification, distribution, and sublicensing of the
Licensed Software and Derivative Works, so as to establish the
payments due hereunder, to identify the location of all copies of the
Licensed Software and Derivative Works, to identify all Sublicenses,
and to otherwise verify Netplex's compliance with the terms of this
Agreement. Such books and records shall be available for inspection by
viaLink at their normal place of keeping during reasonable business
hours upon seven (7) days written notice to Netplex.
F. Delivery. viaLink shall deliver to Netplex copies of the source code
and object code of the Licensed Software and a copy of the
Documentation upon execution of this Agreement. viaLink shall also
deliver to Netplex any subsequent versions of the Licensed Software
which it may develop in the future. Netplex shall be responsible for
delivering the object code version of the Licensed Software, the
Documentation and the Derivative Works to its Customers.
G. Maintenance and Support. Netplex shall be responsible for maintaining
the Licensed Software, the Documentation, and all Enhancements and
Derivative Works and for providing any technical support relating to
the Licensed Software to its Customers. Notwithstanding anything to
the contrary in this Agreement, viaLink shall not have any
responsibility or obligation to maintain or support the Licensed
Software for Netplex or any of Netplex's Customers. Notwithstanding
the foregoing, during the term of this Agreement, if viaLink develops
Enhancements or Derivative Works or otherwise changes the Licensed
Software or Documentation, then viaLink shall make the Enhancements,
Derivative Works, or changes available to Netplex under this
Agreement.
H. Ownership and Notices. Netplex acknowledges that the Licensed
Software, Enhancements, and Documentation, as delivered hereunder and
as modified by viaLink, including Derivative Works, are the sole and
exclusive property of viaLink and that Netplex has no rights in the
foregoing except as set forth in this Agreement. To the extent Netplex
may have any rights in the Enhancements or Derivative Works, Netplex
hereby assigns such rights, including copyrights, to viaLink. Netplex
shall not remove, alter, cover or obfuscate any copyright notice or
other proprietary rights notice placed in machine readable language or
human readable form on the Licensed Software or Documentation. Netplex
shall insure that such notices continue to appear or exist in any
Derivative Work Netplex develops. Notwithstanding anything to the
contrary in this Agreement or in the Asset Acquisition Agreement, and
further notwithstanding any exercise of any option granted to Netplex
pursuant to this Agreement, Netplex acknowledges and agrees that
Netplex does not obtain and shall not acquire by the terms of any of
the foregoing or otherwise, any right, title, interest, or option of
any kind or nature in or to any of the other products or services of
viaLink.
I. Option to Purchase. Because Netplex has the responsibility to maintain
and support the Licensed Software, viaLink hereby grants to Netplex
the irrevocable option to purchase the Licensed Software, the
Documentation, all Enhancements and all Derivative Works. The option
shall be exercisable upon ten (10) days written notice by Netplex to
viaLink ("Option To Purchase"). The Option To Purchase may only be
exercised on or after January 1, 2002. The Option To Purchase shall
expire on December 31, 2003. The price shall be the lesser of (a) an
amount equal to ten percent (10%) of the
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difference between the total revenue earned by Netplex from the
sublicensing and/or maintenance of Licensed Software less the cost
directly incurred by Netplex to maintain and support the Licensed
Software, or (b) one hundred thousand dollars ($100,000).
Notwithstanding anything to the contrary herein, Netplex's right to
exercise such Option To Purchase is subject to the following: (i)
Netplex must grant viaLink and/or its successors or assigns the
nonexclusive, perpetual, transferable limited right to license, use,
copy, to make Enhancements and Derivative Works and to sublicense
Chainlink(R), but only to the extent reasonably necessary for the
sale, licensing installation, integration, use, implementation and
support of viaLink products and services; (ii) Netplex must grant to
viaLink and its successors and assigns the nonexclusive, perpetual,
transferable right and license to use the source code and executable
code and continue to support or otherwise address any issues raised by
any licensees of Chainlink(R)which were granted licenses by viaLink
prior at the time that Netplex exercised its Option To Purchase.
Moreover, the exercise of the Option To Purchase shall not affect the
rights of any licensee of viaLink to continue to use the Licensed
Software pursuant to the license agreement by which such licensee
acquired the right to use the same. In the event that Neptlex
exercises its Option To Purchase, viaLink shall be entitled to retain
and use a copy of the then current source code and executable code for
the Licensed Software. In the event that said Option To Purchase is
exercised, the rights granted to viaLink, its licensees and successors
and assigns hereunder shall survive the termination of this Agreement.
In the event that Netplex does not elect to purchase Chainlink(R)or if
this Agreement is terminated for any reason, viaLink shall not have
any liability for any of the licenses or sublicenses for
Chainlink(R)executed by Netplex or its sublicensees during the term of
this Agreement. Netplex shall indemnify, defend and hold viaLink
harmless from any of the claims, damages or causes of action arising
out of any licenses or sublicenses executed by Netplex during the term
of this Agreement, except to the extent that any such claim or cause
of action is covered by Section L(2) hereof.
J. Confidentiality. Netplex acknowledges that the Licensed Software,
Derivative Works, and the Documentation contain valuable trade secrets
which are the sole and exclusive property of viaLink. Netplex agrees
that it will not disclose this information to anyone other than its
own employees or the employees of its affiliates, subsidiaries or
related companies, that it will protect the confidentiality of this
information, and that it will take reasonable precautions to prevent
any unauthorized use or disclosure of this information.
Notwithstanding anything to the contrary herein, Netplex's obligations
under this Section shall survive the termination of this Agreement.
K. Warranty and Disclaimer.
1. Year 2000 Compliance. viaLink warrants and represents that the
Licensed Software will not produce errors processing date data in
connection with the year change from December 31, 1999 to January 1,
2000 when used with accurate date data in accordance with the
documentation therefore, provided all other products (including,
without limitation, other software, firmware, hardware, and operating
systems) used with it properly exchange date data with the Licensed
Software. The Licensed Software will recognize the year 2000 as a leap
year. The foregoing warranty and representation refers only to the
Licensed Software as delivered by Seller at the execution of this
Agreement, and does not apply to user initiated modifications, user
customizable features or third party add-on features or products,
including items such as macros and custom programming and formatting
features, and further does not constitute a warranty or extend the
terms of any existing warranty.
2. Other Warranties. THE WARRANTIES SET FORTH IN SECTION (J)(1) AND IN
SECTION (L)(1) OF THIS AGREEMENT ARE THE ONLY WARRANTIES MADE BY
viaLink IN REGARDS TO THE LICENSED SOFTWARE AND viaLink SPECIFICALLY
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. EXCEPT FOR SAID WARRANTIES SET FORTH IN SECTION
(J)(1) AND IN SECTION (L)(1) OF THIS AGREEMENT, THE LICENSED SOFTWARE
IS DELIVERED TO NETPLEX AS IS, WHERE IS.
C. Limitation of Liability. IT IS UNDERSTOOD AND AGREED THAT viaLink's
LIABILITY FOR ANY DAMAGES SUFFERED BY NETPLEX OR ITS CUSTOMERS, WHETHER
IN CONTRACT, IN TORT, UNDER ANY WARRANTY THEORY, IN NEGLIGENCE, OR
OTHERWISE SHALL BE LIMITED TO THE AMOUNT PAID TO viaLink BY NETPLEX
PURSUANT TO THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL viaLink BE
LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING
LOST PROFITS) OF NETPLEX, ANY CUSTOMER, OR ANY THIRD PARTY, EVEN IF
viaLink HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER
THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN TWO (2) YEARS
AFTER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE OCCURRENCE OF THE
EVENT(S) WHICH GAVE RISE TO THE CAUSE OF ACTION.
D. Patent, Copyright and Trade Secret Indemnity.
1. Representation. viaLink represents that it owns all patented or
copyrighted material contained in and all trade secrets with respect
to the Licensed Software and Documentation as the same were delivered
to Netplex at the execution of this Agreement.
2. Indemnification by viaLink. In the event any suit is brought against
Netplex or one of its Customers based on a claim that the unmodified
version of the Licensed Software originally delivered by viaLink at
the execution of this Agreement infringes any existing patent,
copyright, or trade secret, viaLink agrees that it will:
a. to the extent that the claims or proofs of the suit involve claims
or factual allegations that the unmodified Licensed Software infringes
any existing patent, copyright, or trade secrets, defend the suit at
its expense and hold Netplex and/or its Customers harmless therefrom,
as long as viaLink is promptly notified in writing and is given
complete authority and information required to defend the suit;
b. to the extent that any judgment in any such suit is based on proof
that the unmodified Licensed Software infringes any existing patent,
copyright, or trade secrets, pay all damages and costs awarded against
Netplex and/or its Customers related thereto; provided that viaLink
shall not be responsible for any cost, expense, or compromise made or
incurred by Netplex and/or its Customers without viaLink's written
consent;
c. allow Netplex to participate in the defense of the suit at its own
expense, if it so elects.
3. Indemnification by Netplex. In the event any suit is brought against
viaLink or one of its Customers based on a claim that the Licensed
Software, as modified by or on behalf of Netplex or any of its
sublicensees or their sublicensees, infringes any existing patent,
copyright, or trade secret, Netplex agrees that it will:
a. to the extent that the claims or proofs of the suit involves claims
or factual allegations that the Licensed Software as a result of the
modifications, infringes any existing patent, copyright, or trade
secrets, defend the suit at its expense and hold viaLink and/or its
customers harmless therefrom, as long as Netplex is promptly notified
in writing and is given complete authority and information required to
defend the suit;
b. to the extent that any judgment in any such suit is based on proof
that the Licensed Software as a result of the modifications, infringes
any existing patent, copyright, or trade secrets pay all damages and
costs awarded against viaLink and/or its Customers and hold viaLink
harmless therefrom;
provided that Netplex shall not be responsible for any cost, expense,
or compromise made or incurred by viaLink and/or its customers without
Netplex's written consent;
c. allow viaLink to participate in the defense of the suit at its own
expense, if it so elects.
4. viaLink's Options. During the Term of this Agreement, should the
Licensed Software or any part thereof, before any modifications or
Enhancements thereto or Derivative Works therefrom are made by or on
behalf of Netplex or any of Customers, become, or in viaLink's
opinion, be likely to become, the subject of a claim for infringement,
viaLink shall, at its own expense and option, either procure for
Netplex the right to continue using such Licensed Software or replace
the same with non-infringing software or modify the Licensed Software
so that it becomes non-infringing. If neither of these options is
reasonably practical, viaLink may require that the Licensed Software
and all Derivative Works be returned and this Agreement terminated
upon a refund to Netplex for all Sublicense Fees paid hereunder,
without deduction for use, and upon reimbursement to Netplex for the
costs of all maintenance and support provided by Netplex. Moreover,
viaLink shall have no obligation with respect to any such claim based
upon Netplex or its Customer combining, operating or using the
Licensed Software with equipment, data or software not furnished by
viaLink. Netplex shall have the option to procure continued use at its
own expense. After the Term of this Agreement or in the event that any
modifications or Enhancements or Derivative Works are made to the
Licensed Software by or on behalf of Netplex or any of its Customers,
viaLink shall not have any obligation under this Section (K)(4).
M. Termination.
1. By viaLink. viaLink may terminate this Agreement prior to its
expiration on the occurrence of any of the following events:
a. The failure of Netplex to pay any sum when due hereunder, provided
however, that viaLink shall have given Netplex written notice of
its intent to terminate this Agreement, and Netplex has not paid
the amounts due within thirty (30) days after receipt of the
notice.
b. Any other material default by Netplex under this Agreement, the
Asset Acquisition Agreement or the Earn-Out Agreement which has
not been cured within thirty (30) days of written notice given by
viaLink to Netplex.
2. By Netplex. Netplex may terminate this Agreement upon ninety (90) days
written notice to viaLink.
3. Duties upon Termination. Upon expiration or termination of this
Agreement, Netplex agrees to cease using, modifying, and sublicensing
the Licensed Software, Derivative Works, and Documentation, and to
return to viaLink all copies thereof. The obligation of
confidentiality set forth in this Agreement shall remain in effect
notwithstanding any termination of this Agreement. Netplex shall
retain all sublicense agreements and records relating to sublicense
agreements for a period of two (2) years after termination and shall
deliver copies of the same to viaLink upon request. In the event of
termination by either Netplex or by viaLink, Netplex, at viaLink's
option, shall assign and transfer to viaLink all of Netplex's right
and interest in all sublicenses of the Licensed Software.
4. Customer Rights Upon Termination. Termination shall not affect the
rights of any Customer to use the Licensed Software; subject however
to the terms, covenants and conditions of the sublicenses under which
such Customers obtained the right to use the Licensed Software.
F. Assignment. This Agreement may not be assigned by viaLink or Netplex
without the prior written approval of the other party, which approval
shall not be unreasonably withheld.
G. Entire Agreement. The parties agree that this Agreement constitutes
the complete and exclusive statement of the agreement between them
with regards to the subject matter of this Agreement which
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supercedes all proposals, oral or written, and all other
communications between them relating to the license and use of the
Licensed Software; provided however, and notwithstanding anything to
the contrary herein, to the extent that there is any conflict between
the terms of the Asset Acquisition Agreement and this Agreement in
regards to the use of Chainlink(R), the terms and conditions of this
Agreement shall prevail in regards thereto.
H. Amendments. This Agreement may only be amended, modified or changed in
a writing signed by both parties.
I. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Oklahoma.
J. No Waiver. The failure of either party to enforce any of the
provisions hereof shall not be construed to b a waiver of the right of
such party thereafter to enforce such provisions.
K. Attorney's Fees and Costs. In any action to enforce any rights or
obligations hereunder, the prevailing party shall be entitled to
receive its costs and attorneys fees expended in such an action from
the other party.
L. Relationship of the Parties. Each party is acting as an independent
contractor and not as agent, partner, or joint venturer with the other
party for any purpose. Except as provided in this Agreement, neither
party shall have any right, power, or authority to act or to create
any obligation, express or implied, on behalf of the other.
M. Notices. All notices demands and other communications pertaining to
this Services Agreement ("Notices") shall be in writing addressed as
follows:
If to viaLink:
Xxxxxx X. Xxxxx, Vice President
viaLink
00000 Xxxxxx Xxxx
Xxxxxx, XX 00000-0000
with a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx X. Xxxxxx & Associates, P.C.
000 Xxxxxx X. Xxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
If to Netplex:
The Netplex Group, Inc.
Attention: Xxxx X. Xxxxx, President
0000 Xxxxxxxxxx Xxxxx, 0xx Xxxxx
XxXxxx, Xxxxxxxx 00000
with a copy to:
Attn: Xxxxxx X. Xxxxx, Xx., Esq.
Xxxxxx Price Xxxxxxx & Day
22nd Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
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Notices shall be deemed given five (5) business days after being
mailed by certified or registered United States mail, postage prepaid,
return receipt requested, or on the first business day after being
sent, prepaid, by nationally recognized overnight courier that issues
a receipt or other confirmation of delivery to the appropriate
recipient of such Notice. Any party may change the address to which
Notices under this Services Agreement are to be sent to it by giving
written notice of a change of address in the manner provided in this
Services Agreement for giving Notice.
N. Remedies. The rights and remedies granted to viaLink in this Agreement
are in addition to and not in lieu of any other rights and remedies
which viaLink may have at law or in equity of any breach of default by
Netplex of this Agreement, including without limitation the right to
obtain appropriate injunctive relief without the necessity of bond to
enforce this Agreement against any breach of threatened breach hereof.
The rights and remedies granted Netplex in this Agreement are
exclusive.
O. Binding. This Agreement is binding on the successors and assigns of
the parties hereto.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the undersigned have signed this Software
Remarketing and Reselling Agreement as of the date first above written.
THE NETPLEX GROUP, INC.
---------------------------------
Xxxx X. Xxxxx
President
APPLIED INTELLEGENCE GROUP, INC.
By: ___________________________________
Name: _________________________________
Title: __________________________________
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