Exhibit 10.21
OneSoft Corporation has omitted from this Exhibit 10.21 portions of this
Agreement for which OneSoft Corporation has requested confidential treatment
from the Securities and Exchange Commission. The portions of the Agreement for
which confidential treatment have been requested have been filed separately with
the Securities and Exchange Commission. Such omitted portions have been marked
with an asterisk.
ONESOFT MANAGED APPLICATION AND SERVICES AGREEMENT *******
THIS AGREEMENT is entered into as of June 18, 1999 by and between OneSoft
Corporation ("ONESOFT"), a Delaware Corporation having an office at 0000 Xxxxxx
Xxxxx Xxxxxxxx Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, and SMARTCRUISER, LLC,
("CLIENT") having an office at 0000 X. Xxxxxxxx Xxx., Xxxxxxx Xxxxx, Xxxxxxx,
00000
The parties hereby agree as follows:
ONESOFT STANDARD LICENSE AND SERVICES TERMS AND CONDITIONS
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1. DEFINITIONS
(a) This "Agreement" means this document entitled OneSoft Managed Application
and Services Agreement together with each Product Addendum, Scope of Work,
Change Order, or Schedule, attached hereto and/or thereto, collectively (and
each Product Addendum, Scope of Work, Change Order, or Schedule attached hereto
or thereto, is hereby incorporated into this Agreement by reference and is made
a part of this Agreement as if fully set forth herein); and
(b) "Product Addendum" means a document attached hereto and signed by the CLIENT
and ONESOFT that identifies Software Product(s) licensed under this Agreement,
along with any additional terms and conditions for the licensing or management
thereof; and
(c) "Scope of Work" means a document attached hereto and signed by the CLIENT
and ONESOFT (including any Schedule(s) attached thereto) that identifies the
services to be provided under this Agreement, along with any additional terms
and conditions for the performance and/or management thereof; and
(d) "Change Order" means a document in either paper or electronic form (i.e.
email that can be reasonably dated, traced and/or otherwise identified) that
originates from an authorized representative of CLIENT (including any
Schedule(s) attached thereto), and is accepted by ONESOFT, authorizing
additional services or products under a Scope of Work and/or Product Addendum;
and
(e) "Schedule" means an attachment to this Agreement, Scope of Work, Product
Addendum, or Change Order and which provides additional or collateral
information for the document to which it is attached; and
(f) "Software Product" means the object code version of a ONESOFT software
product that is identified in an attached Product Addendum (including any
Schedule(s) attached thereto); and
(g) "Point of Contact" means a contact point, named with respect to ONESOFT or
CLIENT, in Paragraph 30 or in a Product Addendum, Scope of Work or Change Order;
and
(h) "Server" means, if with respect to a Software Product licensed for use on a
server furnished and operated by ONESOFT, then a server furnished and operated
by ONESOFT under this Agreement and described in a related Product Addendum,
Scope of Work, Change Order, or Schedule, or if with respect to a Software
Product licensed for use on a server furnished and operated by CLIENT then a
server used by the CLIENT that meets the requirements set forth in technical
documentation for a Software Product and that is installed at a location within
the United States; and
(i) "Site" means a World Wide Web site with one or multiple domain name(s)
mapped to one IP address and supported by a single instance of a database
schema; and
(j) "Processor" means a single Intel standard processor installed in a Server
that operates a Software Product; and
(k) "User" means a single individual accessing or using the Software Product;
and
(l) "Patch" means a one-time correction provided by ONESOFT to address a
reported problem in a Software Product; and
(m) "Letter Release" means a version of a Software Product that is generally
released by ONESOFT to its supported customers for that Software Product, and
which is identified by the addition of a letter to the previous Point Release
number (such as version 1.5A); and
(a) "Point Release" means a version of a supported Software Product that is
generally released by ONESOFT to its supported customers for that Software
Product, and which is identified by a decimal number change (such as 1.0 to
1.1); and
(o) "Version Release" means a version of a supported Software Product which is
identified by a number followed by a decimal point and a zero (0) (such as
version 2.0) for which ONESOFT may charge a separate license fee to its
supported customers; and.
(p) "Upgrade" means an upgrade to a new Software Product Release which contains
one or more significant new major features for which ONESOFT may charge a
separate license fee to its supported customers; and
(q) "Workaround" means a procedure to avoid a reported problem in a Software
Product; and
(r) "Support Materials" means anything delivered by ONESOFT to CLIENT under its
Software Maintenance Services, including, but not limited to, any Patches,
Workarounds, Letter Releases, Point Releases, and any related documentation; and
(s) "Software Maintenance Services" means, (i) when used in connection with a
Software Product license, other than a Managed Application license, maintenance
consisting
Confidential Information 1
of the shipment to CLIENT of Patches, Workarounds, Letter Releases,
and Point Releases as generally released by ONESOFT for a Software Product; or
(ii) when used in connection with a Software Product Managed Application
license, maintenance consisting of the delivery to CLIENT of Patches,
Workarounds, Letter Releases, and Point Releases as generally released by
ONESOFT for a Software Product.
(t) "Services" (to the extent provided for under a Scope of Work or Change Order
attached hereto) shall mean and include, without limitation, professional
service bureau tasks, managed application services, co- location services,
customer support services, transaction processing services, or other services as
set forth in such Scope of Work or Change Order.
2. LICENSE GRANT
(a) Subject to the terms and conditions of this Agreement, ONESOFT grants to
CLIENT, and CLIENT accepts, a non-exclusive limited nontransferable license to
use, in the United States only, each Software Product identified in a Product
Addendum, in accordance with the provisions thereof, which Product Addendum is
incorporated herein by reference.
(b) CLIENT acknowledges receiving, and agrees to comply with, all the terms and
conditions of third party software sublicenses that apply to CLIENT's use of
ONESOFT's Software Products.
(c) The CLIENT agrees that it shall not:
(i) Copy any Software Product for any purpose other than for archival or
emergency restart purposes or program error verification; and/or
(ii) Sublicense, rent or otherwise make a Software Product available to any
third party for a fee or otherwise whether in a service bureau environment
or otherwise; or
(iii) Reverse engineer, decompile, disassemble, or modify a Software
Product or separate a Software Product into components or its component
files, recreate, or attempt to determine the makeup of any Software
Product.
3. DELIVERY
ONESOFT shall deliver to CLIENT a copy of each Software Product for which a
license is granted under this Agreement, in an electronic medium or by direct
loading onto a designated Server over the Internet.
4. SOFTWARE PRODUCT RELATED FEES
(a) CLIENT agrees to pay to ONESOFT, in accordance with the provisions of this
Agreement, and each Product Addendum, the applicable license fees, maintenance
fees, and other applicable fees related to the Software Products.
(b) All license fees, maintenance fees and other applicable fees for a perpetual
license are due upon the execution of the requisite Product Addendum.
(c) CLIENT must pay the ***** and ****** of all Recurring Monthly Managed
Application Services fees upon the execution of the requisite Product Addendum.
5. LICENSE TERM
(a) Each license granted with respect to a Software Product under this Agreement
shall continue in full force and effect for the term specified in the related
Product Addendum, unless earlier terminated in accordance with this Agreement or
the Product Addendum.
(b) Software Maintenance Services obligations of ONESOFT shall terminate to the
extent that related Software Product license has terminated.
6. SOFTWARE PRODUCT MAINTENANCE
(a) Subject to the terms and conditions of this Agreement, ONESOFT will provide
Software Maintenance Services to CLIENT for each Software Product for so long as
CLIENT has timely satisfied all payment obligations for Software Maintenance
Services Fees as defined in and set forth in the applicable Product Addendum.
ONESOFT shall have no obligation to provide Software Maintenance Services,
however, unless the installed Software Product is the then-current Version
Release and is utilized on a Server of a type supported by ONESOFT.
(b) If CLIENT, at the time ONESOFT releases a Version Release or an Upgrade to a
Software Product, is then-currently entitled to Software Maintenance Services
under this Agreement, then upon payment of any applicable fee set by ONESOFT for
such Version Release or Upgrade, ONESOFT shall provide such Version Release or
Upgrade to CLIENT to replace CLIENT's then-installed version of the Software
Product.
(c) CLIENT agrees that if a Software Product is installed on a Server not
furnished and operated by ONESOFT, then CLIENT will install and maintain the
equipment and Software Product as required by ONESOFT to permit Software
Maintenance Services to be delivered electronically with respect to such
Software Product.
(d) ONESOFT shall have no obligation under this Agreement to furnish maintenance
and/or support for a Software Product except as expressly provided herein, or
under an applicable Product Addendum.
7. SERVICES RETENTION AND TERMINATION
(a) To the extent provided under a Scope of Work or Change Order, CLIENT hereby
retains ONESOFT to provide certain services in accordance with the provisions of
this Agreement and such Scope of Work or Change Order ("Services"). Services may
include, without limitation professional service bureau tasks, managed
application services, co-location services, customer technical support services,
transaction processing services, or other services as set forth in such Scope of
Work or Change Order.
(b) ONESOFT agrees to use commercially reasonable efforts to perform such
Services.
(c) Except as otherwise provided herein or therein, either party may terminate a
Scope of Work or Change Order at any time with or without cause by giving
thirty (30) days prior written notice to the other party; provided, however,
that, in any event, ONESOFT shall be paid in full for all services it performs
before or during such 30-day period.
(d) With respect to Services under a Scope of Work for Managed Application
Services that relates to a Product Addendum for a month-to-month Software
Product license, such Services shall continue (and shall not be subject to the
provisions of Subparagraph (c)), unless terminated in accordance with the
provisions of this Agreement, in full force and effect for a period of twenty
four (24) months from the Commencement Date (as defined in the applicable
Scope of Work), and shall be renewed automatically for successive one-year
periods unless a party notifies the other party of its intention to not renew
at least ninety (90) days before the end of the then-current period, in which
event, the Scope of Work and/or Product Addendum for such Services shall
terminate at the end of such period. Any early termination, for any reason, of
any Scope of Work, Product Addendum, or Change Order of this Agreement shall
not relieve CLIENT of its payment obligations under this Subparagraph (d)
except as provided in Subparagraph (f).
(e) With respect to Services under a Scope of Work for Co-Location Services,
such Services shall continue (and shall not be subject to the provisions of
Subparagraph (c)),
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unless terminated in accordance with the provisions of this Agreement, in full
force and effect for a period of twenty four (24) months from the Commencement
Date (as defined in the applicable Scope of Work), and shall be renewed
automatically for successive one-year periods unless a party notifies the
other party of its intention to not renew at least ninety (90) days before the
end of the then-current period, in which event, the Scope of Work for such
Services shall terminate at the end of such period. Any early termination, for
any reason, of any Scope of Work and/or Change Order of this Agreement shall
not relieve CLIENT of its payment obligations under this Subparagraph (d)
except as provided in Subparagraph (f).
(f) CLIENT may request an early termination of a Managed Application Service or
Co-Location Scope of Work or Product Addendum with the provision for a dedicated
Server package, or with a provision for a shared Server package, for its
convenience; provided, however, that CLIENT shall be obligated to pay a fee for
such termination in an amount equal to all fees that would be due, but for the
termination, during the twelve (12) months after the date of termination.
8. SERVICES FEES AND GENERAL PAYMENT TERMS
(a) CLIENT agrees to pay ONESOFT in accordance with the provisions of this
Paragraph 8. Except as otherwise provided in a Scope of Work, Change Order, or
Schedule, CLIENT shall pay ONESOFT its published rates for services. Such rates
are subject to change upon ******** days notice to CLIENT.
(b) Except as otherwise provided in a Scope of Work, Change Order, or Schedule,
CLIENT shall pay ONESOFT a deposit of ******** percent (***%) of all
Professional Services fees identified in a Quotation/Estimate before
commencement of work by ONESOFT; the remaining balance to be billed for as
incurred. The deposit to be refundable if the amount exceeds work performed
under the requisite Scope of Work, Change Order, or Schedule.(b)
(c) CLIENT shall be responsible for and shall pay (and agrees to indemnify and
hold ONESOFT harmless from) all sales, use, gross receipts, value-added, GST,
data processing excise, personal property or similar taxes or duties (including
interest and penalties imposed thereon), which are levied or imposed by reason
of the Software Products, Services and other deliverables provided hereunder;
provided, however, that CLIENT shall not be responsible for paying any taxes
imposed on the net income or profits of ONESOFT.
(d) ONESOFT shall invoice CLIENT for payments due under this Paragraph 8 on a
monthly basis. Each ONESOFT invoice shall be due net ********* days from the
date of invoice. CLIENT acknowledges and agrees that under the terms of this
Agreement, no CLIENT Purchase Order ("PO") is required for the payment of
ONESOFT invoices by CLIENT. In the event that a PO is required by the CLIENT for
its internal processes, CLIENT shall issue such PO in a timely manner such that
ONESOFT invoices may be issued and paid in accordance with the provisions of
this Paragraph 8 and any failure by CLIENT to do so shall not excuse CLIENT from
its obligations under this Paragraph 8.
(e) CLIENT shall pay in full any travel expenses incurred by ONESOFT that result
from providing service to CLIENT under this Agreement in geographical locations
other than Annandale, VA.
(f) CLIENT shall advise ONESOFT of any dispute regarding an invoice within
********* days of the date of invoice but shall nevertheless pay all charges.
Any disputed item shall be reconciled, if necessary, promptly upon settlement of
the dispute. If CLIENT fails to notify ONESOFT of any dispute with respect to an
invoice within ****** days of receipt, CLIENT shall be deemed to have
accepted the invoice in its entirety. CLIENT shall not have any right to
withhold or setoff any amounts due hereunder.
(g) Notwithstanding any other provision of this Agreement, if CLIENT fails to
pay any ONESOFT invoice by the due date, ONESOFT may, in its sole discretion,
suspend all or any part of its Services to CLIENT until payment is received or,
upon notice to CLIENT, terminate Services under this Agreement. ONESOFT shall
incur no liability to CLIENT if ONESOFT so suspends or terminates its Services.
ONESOFT also reserves the right to charge interest at the maximum rate allowed
by law on all amounts past due, and to assert appropriate liens to ensure
payment.
(h) In the event that either party retains the services of attorneys or other
persons to enforce its rights under this Agreement, including for the recovery
of any sum due under this Agreement, or to defend any claim made by the other
party, then all costs and expenses, including reasonable attorney's fees,
incurred by the prevailing party of such an action, shall be paid by the
non-prevailing party, whether or not the action, if any, is prosecuted to
judgment. If an action is prosecuted to judgment, the prevailing party shall
also be entitled to recover attorney's fees and costs incurred in enforcing the
judgment. Unless the parties mutually agree otherwise, the prevailing party
shall be determined by the tribunal that presides over the action and such
determination shall be final and binding on the parties.
9. CONFIDENTIAL INFORMATION
(a) Each party hereby acknowledges that it may receive confidential information
of the other party including, without limitation, software, computer programs,
object code, source code, database schemas, specifications, flow charts,
marketing plans, financial information, business plans and procedures, the terms
of this Agreement, ONESOFT's Client Guide, Software Products, employee
information, and other confidential information (hereinafter referred to as
"Confidential Information"). Confidential Information does not include (i)
information independently developed by the recipient without reference to the
other party's Confidential Information; (ii) information in the public domain
through no wrongful act of the recipient, or (iii) information received by the
recipient from a third party who was rightfully in possession of such
information and had no obligation to refrain from disclosing it.
(b) Except as expressly authorized herein or as required by law, the recipient
of Confidential Information agrees that during the term hereof, and at all times
thereafter, it shall not use, commercialize or disclose such Confidential
Information to any person or entity, except to its own employees having a need
to know and to such other recipients as the other party may approve in writing.
Each party shall use at least the same degree of care in safeguarding the other
party's Confidential Information as it uses in safeguarding its own Confidential
Information, but in no event shall less than reasonable diligence and care be
exercised.
(c) All Confidential Information supplied by ONESOFT to CLIENT pursuant to this
Agreement shall remain the exclusive property of ONESOFT.
(d) CLIENT agrees that it will not remove any proprietary, trademark, copyright,
confidentiality, patent or other intellectual property notice or marking from
any Software
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Product, documentation, display, media or other materials delivered under this
Agreement, or any copies thereof.
(e) CLIENT agrees that it will not violate any proprietary rights in the
Software Products and shall not reverse engineer, decompile, disassemble, or
modify a Software Product or separate a Software Product into components or its
component files, recreate, or attempt to determine the makeup of any Software
Product. CLIENT agrees that any information discovered thereby shall be deemed
ONESOFT's Confidential Information.
(f) CLIENT shall keep Software Products in its possession strictly confidential
and protected.
(g) CLIENT shall not use or reproduce the Software Products, or any
documentation or media or other materials associated therewith, except as
permitted by the terms of this Agreement.
(h) In the event that a party is required by law or judicial or administrative
process to disclose Confidential Information, such party shall, insofar as
practicable, promptly notify the party whose Confidential Information is
required to be disclosed and allow the party a reasonable opportunity to oppose
disclosure.
10. OWNERSHIP AND OTHER PROPRIETARY RIGHTS
(a) Except as otherwise expressly provided in this Paragraph 10, "Software,"
"Tools," and "Objects" (as such terms are defined in this Paragraph 10),
including all originals and all copies thereof regardless of form, are and shall
remain the sole and exclusive property of ONESOFT and shall be deemed its
Confidential Information.
(b) Except as expressly provided in this Agreement, CLIENT does not acquire any
right or license in ONESOFT's Software, Tools or Objects. (b)
(c) "Tools" means ONESOFT's proprietary information and know-how used at any
time by ONESOFT in the conduct of its business, including without limitation,
technical information, designs, templates, software modules, processes,
methodologies, systems used to create computer programs or software, procedures,
code books, computer programs, plans, or any other similar information including
improvements, modifications or developments thereto.
(d) "Objects" means ONESOFT's proprietary reusable software code.
(e) "Software" means any and all of ONESOFT's proprietary software code.
(f) Each party understands and agrees that any use or disclosure of any
information or materials in violation of this Paragraph 10 will cause the other
party irreparable harm, will leave such party with no adequate remedy at law,
and will entitle such party to injunctive relief in addition to all other
remedies available. A party that violates its obligations hereunder, shall
reimburse the other party for reasonable costs and expenses incurred in
enforcing its rights with respect to such violation.
(g) CLIENT shall have a non-exclusive license to use, for internal purposes only
and not on a service bureau basis (and to modify for such use), any custom
application originally developed for CLIENT under this Agreement, as an
integrated product, for so long as CLIENT has a license to use any Software
Products, Software, Tools and/or Objects necessary to operate the custom
application; provided, however, that CLIENT may not unbundle from the custom
application any Software, Software Products, Tools and/or Objects, apart from
their use as an integral part of the custom application.
(h) Except as expressly set forth in this Agreement, this Paragraph 10 does not
constitute a license to use Software, Software Products, Tools and Objects,
which CLIENT must separately license from ONESOFT as necessary to use any custom
application.
(i) Nothing in this Agreement shall be deemed to limit ONESOFT's rights to
develop and market functionally comparable products or deliverables based on the
same general concepts, techniques and routines used in connection with any
custom application.
(j) CLIENT acknowledges and agrees that, unless otherwise specified in any Scope
of Work, Product Addendum, and/or Schedules attached hereto, ONESOFT maintains
the ownership of all hardware and software upon which, and from which, all
ONESOFT Managed Application Services are provided hereunder.
(k) CLIENT warrants that all Data (as defined) delivered to ONESOFT by CLIENT
does not, and shall not, infringe or violate any copyright, trademark, trade
secret, patent or other intellectual property right, and that CLIENT has the
right to use, disclose, publish, translate, reproduce, or deliver any such Data.
CLIENT agrees to indemnify and hold harmless ONESOFT, its directors, officers,
employees and agents, against any and all losses, liabilities, judgments, awards
and costs (including reasonable legal fees and expenses), arising out of or
related to any claim that Data infringes or violates a copyright, trademark,
trade secret, patent or other intellectual property right.
(l) "Data" as used in this Paragraph 10 mean any data, software or other
information including, but not limited to, writings, designs, specifications,
reproductions, pictures, drawings, or other graphical representations, and any
works of a similar nature.
(m) With respect to any software, data, content or other materials supplied by
CLIENT, ONESOFT is hereby granted the nonexclusive irrevocable right and license
to use the same for use in providing the Services. CLIENT represents and
warrants to ONESOFT that utilization of any software, data, content or other
materials supplied by CLIENT in the manner contemplated by the terms of the
Agreement, and the Scope(s) of Work, will not infringe or misappropriate any
copyright, trademark, patent, trade secret or other intellectual property right
of any third person. CLIENT represents and warrants to ONESOFT that the use of
any software provided by the CLIENT for ONESOFT to manage under this Agreement
or Scope(s) of Work, when used as contemplated by the terms of this Agreement or
the Scope(s) of Work, will not infringe or misappropriate any copyright,
trademark, patent, trade secret or other intellectual property right of any
third person.
(n) All software modifications (whether or not specially ordered by CLIENT)
developed by ONESOFT, any discoveries made, improvements, modifications,
adaptations, or developments by ONESOFT (whether or not at CLIENT's request
pursuant to this Agreement or any other agreement between the parties), are and
shall remain, the exclusive property of ONESOFT, unless otherwise provided under
such other agreement, signed by both parties.
(o) Unless otherwise agreed in writing, nothing in this Agreement shall be
deemed to authorize the CLIENT to use any copyright, name, trademark, service
xxxx, or patent of ONESOFT.
11. PUBLIC RELATIONS
(a) ONESOFT shall have the right to release a selection announcement to the
public. CLIENT shall provide a supporting quote and shall have right to review
final release.
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(b) ONESOFT shall have the right to disclose its relationship with the CLIENT in
ONESOFT's promotional, advertising, and marketing materials.
(c) ONESOFT shall have the right to use CLIENT graphics, logos, imagery, and its
URL in ONESOFT's promotional, advertising, and marketing materials.
(d) CLIENT agrees to serve as a reference for potential press, analyst and
prospective customers when approached to do so by ONESOFT.
(e) ONESOFT reserves the right to provide CLIENT with ownership graphics and any
associated hypertext links, that shall be placed on the Web pages resulting from
the selection of a registered domain name URL or Web page that displays
functionality of a Software Product, subject to CLIENT's approval which shall
not be unreasonably withheld or delayed.
12. MARKS AND PATENTS
(a) CLIENT acknowledges that "OneSoft(TM)" and all other Software Product names
are or include trademarks, and/or service marks, and are the intellectual
property of the ONESOFT. Unless otherwise agreed in writing, nothing herein
shall be deemed to authorize the CLIENT to use any pending and/or existing name,
trademark and/or service xxxx of ONESOFT.
(b) CLIENT acknowledges that any underlying technology, know-how, or process
used in the design, development, programming, or coding of ONESOFT's Software,
Software Products, Tools, or Objects, is the intellectual property of ONESOFT,
and certain of the same are protected by Patents or Patents Pending.
13. LIMITATIONS ON WARRANTIES AND LIABILITY
(a) ONESOFT warrants only that each Software Product, at the time of initial
delivery to CLIENT pursuant to a Product Addendum, is capable of performing
substantially the functions described in ONESOFT's published technical
documentation at such time for such Software Product, or any product description
that accompanies a Product Addendum; provided, however, that each Software
Product is otherwise accepted by CLIENT "as is." ONESOFT does not warrant that
the operation of any Software Product will be uninterrupted or error free.
(b) ONESOFT warrants that each Software Product shall not, at the time of
execution of a Product Addendum infringe any valid United States Copyright,
United States Patent or United States Trademark. In the event such warranty is
breached, ONESOFT agrees to defend any and all actions alleging any such
infringement that may be brought against CLIENT during the term of this
Agreement, and to pay all damages and costs finally awarded against CLIENT in
such actions or suits on account of such infringement provided that:
(i) ONESOFT shall have received from CLIENT prompt notice of the
commencement of any such action;
(ii) CLIENT, and where applicable, those for whom CLIENT is in law
responsible, shall cooperate fully with ONESOFT in defense of the action;
(iii) The action shall not have resulted from the use of any Software
Product for purposes other than those for which it was authorized and
designed, or the use of any Software Product in combination with software
or other products not supplied by ONESOFT, or where the infringement would
have been avoided by use of the then current version of any of the Software
Products;
(iv) ONESOFT in its sole discretion instead of defending such action may
procure for CLIENT the right to continue the use of the Software Products
subject to such action or it may replace or modify such Software Products
so to become non-infringing or it may refund a portion of the license fees
for such Software Products as reduced based upon a five year straight line
amortization of such fees.
(c) A medium on which a Software Product is furnished is warranted to be free of
defects in materials and workmanship under normal use for a period of ******
days from the date of delivery of the Software Product.
(d) ONESOFT warrants that its Software is designed to be used in connection with
dates in the range of **** through **** and that the Software will operate
during each such time period without error relating to date data; provided,
however, that this warranty does not apply to any of ONESOFT's Software Products
used in combination with software or other products not supplied by ONESOFT.
(e) EXCLUSIVE REMEDIES:
(i) IF CLIENT NOTIFIES ONESOFT IN WRITING, WITHIN ******** DAYS OF THE
EFFECTIVE DATE OF THE PRODUCT ADDENDUM(S) IDENTIFYING A SOFTWARE PRODUCT OF
ANY ERROR OR FAILURE OF SUCH SOFTWARE PRODUCT COVERED BY THE EXPRESS
WARRANTIES IN SUBPARAGRAPHS (A) OR (C) OR (D), ONESOFT SHALL USE REASONABLE
EFFORTS TO PROMPTLY CORRECT ANY SUCH ERROR OR FAILURE.
(II) THE REMEDIES IN SUBPARAGRAPHS 13 (b) AND (e)(i) ABOVE, ARE THE
CLIENT'S SOLE AND EXCLUSIVE REMEDIES FOR ANY EXPRESS OR IMPLIED WARRANTIES
RELATED TO ANY SOFTWARE PRODUCT AND MAINTENANCE AND SUPPORT THEREOF. THE
WARRANTIES AND LIMITATIONS SET FORTH IN THIS PARAGRAPH 13 CONSTITUTE THE
ONLY WARRANTIES OF ONESOFT WITH RESPECT TO ANY SOFTWARE PRODUCT OR ITS
SUPPORT OR MAINTENANCE. SUCH WARRANTIES ARE IN LIEU OF, AND ONESOFT HEREBY
DISCLAIMS, ALL OTHER WARRANTIES, STATUTORY OR OTHERWISE, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES OF CLIENT
SHALL BE LIMITED TO THOSE PROVIDED IN THIS PARAGRAPH 13 TO THE EXCLUSION OF
ANY AND ALL OTHER REMEDIES, INCLUDING, WITHOUT LIMITATION, INCIDENTAL,
SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS,
WHETHER ANY CLAIM IS BASED UPON ANY AGREEMENT, NEGLIGENCE, WARRANTY, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY.. NO AGREEMENTS VARYING OR
EXTENDING THE FOREGOING WARRANTIES, REMEDIES OR LIMITATIONS WILL BE BINDING
ON ONESOFT UNLESS IN WRITING AND SIGNED BY A DULY AUTHORIZED OFFICER OF
ONESOFT.
(iii) ONESOFT MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
SERVICES RENDERED OR THE RESULTS OBTAINED FROM ONESOFT'S WORK, INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL ONESOFT OR ITS SUPPLIERS BE LIABLE
FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
(INCLUDING WITHOUT LIMITATION LOST PROFIT), WITH RESPECT TO SERVICES, EVEN
IF ADVISED OF THE POSSIBILITY THEREOF, WHETHER ANY CLAIM IS BASED UPON ANY
AGREEMENT, NEGLIGENCE, WARRANTY, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY. ONESOFT'S TOTAL LIABILITY IN CONNECTION WITH SERVICES
UNDER THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF THE AGGREGATE FEES
FOR SERVICES RECEIVED BY ONESOFT FROM CLIENT HEREUNDER DURING THE THREE (3)
CALENDAR MONTHS PRECEDING THE TIME CLIENT'S CLAIM AROSE, OR WITH RESPECT TO
THE SPECIFIC SCOPE OF WORK UNDER WHICH THE CLAIM AROSE DURING THE TWELVE
(12) CALENDAR MONTHS PRECEDING THE TIME CLIENT'S
Confidential Information 5
CLAIM AROSE, ALL NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSES OF ANY
LIMITED REMEDY.
14. AUDIT
(a) CLIENT agrees to maintain complete and accurate records containing all data
reasonably required for verification of its compliance with the terms of this
Agreement. ONESOFT, or its authorized representative, shall have the right,
during normal business hours, and upon at least five business days prior notice,
to physically inspect any Server upon which any Software Product is installed,
and to audit and analyze the relevant records of the CLIENT, to verify
compliance with the terms of this Agreement.
(b) CLIENT also agrees to permit remote license auditing of its web site by
ONESOFT to verify CLIENT's compliance with the terms of this Agreement and the
licenses granted hereunder.
15. INDEMNIFICATION
(a) Indemnification by ONESOFT. Except to the extent ONESOFT has acted at
--------------------------
CLIENT's direction or in accordance with CLIENT's specifications, ONESOFT will
indemnify, defend and hold harmless CLIENT from all costs (including reasonable
attorneys' fees) arising from a third party claim against CLIENT based on an
actual or alleged:
(i) Breach of ONESOFT's representations and warranties; or
(ii) Acts or omissions constituting gross negligence or willful misconduct,
committed by ONESOFT,
(iii) Failure by ONESOFT to comply with governmental laws and regulations;
(iv) Infringement by ONESOFT of United States patents, United States
copyrights, United States trademarks, United States trade secrets and other
United States intellectual property rights.
(v) This Subparagraph (a) shall not apply to claims arising as a result of
CLIENT's improper use of ONESOFT's products or services or other
deliverables under this Agreement.
(b) Indemnification by CLIENT. CLIENT will indemnify, defend and hold harmless
-------------------------
ONESOFT from all costs (including reasonable attorneys' fees) arising from a
third party claim against ONESOFT based on an actual or alleged:
(i) Failure by the CLIENT to perform its obligations under this Agreement;
(ii) Breach of CLIENT's representations and warranties;
(iii) Acts or omissions constituting negligence or willful misconduct,
committed by CLIENT; or
(iv) Failure by CLIENT to comply with governmental laws and regulations; or
(v) Infringement by CLIENT (or any property or data provided by CLIENT) of
any patent, copyright, trademark trade secret or other intellectual
property right.
(c) Notice of Claim. If a claim covered under this Paragraph 15 appears likely
---------------
or is made, the party against whom the claim is made (hereinafter referred to as
the "Indemnitee") will promptly provide the other party (hereinafter referred to
as the "Indemnitor") with notice of such claim. If a claim for infringement is
made, ONESOFT may elect to avoid the infringement by:
(i) Obtaining the necessary rights for the Indemnitee to continue to use
the data or software at issue; or
(ii) Modifying the data or software at issue at its expense; or
(iii) Terminating this Agreement, and/or Product Addendum(s) and/or
licenses or Scope(s) of Work and/or Change Orders, and equitably adjusting
the charges to the extent of such termination(s).
16. INJUNCTIVE RELIEF
The parties acknowledge that monetary damages may not be an adequate remedy if a
party breaches its obligations under Paragraphs 2(b) & (c), 9, 10 or 12, since
such breach will result in irreparable harm. The parties therefore agree that,
in the event of any such breach, the non-breaching party shall be entitled to
appropriate mandatory or prohibitory injunctive relief against the breaching
party, in addition to any other remedies at law, in equity or under this
Agreement. A party substantially prevailing in an action for injunctive relief
in connection with this Agreement shall be entitled to recover its costs
(including without limitation reasonable attorneys' fees) from the other party.
17. TERMINATION
(a) Unless otherwise expressly provided for in this Agreement, either party may
terminate this Agreement or any Scope(s) of Work and/or Change Order(s) and/or
Product Addendum(s), and/or any related licenses granted hereunder or
thereunder, by giving the other party written notice to that effect, effective
on the date of receipt of such notice, if:
(i) The other party enters into liquidation, whether or not voluntarily, or
a receiver is appointed to all or any part of its assets, or the other
party becomes bankrupt or insolvent or enters into any arrangement with its
creditors, or takes or suffers any similar action in consequence of debt or
becomes unable to pay its debts as they fall due; or
(ii) The other party materially breaches this Agreement and fails to cure
such breach to the non-breaching party's satisfaction within ten (10) days
of having received written notice of such breach.
(b) ONESOFT may immediately terminate any part of this Agreement if CLIENT
materially breaches any of the provisions of Paragraphs 2(b) & (c), 4, 8, 9, 10,
or 12, of this Agreement.
(c) If a license granted by ONESOFT is terminated for any reason, CLIENT shall,
on the effective date of such termination, cease using any and all of the
subject matter of the license and CLIENT shall promptly deliver to ONESOFT all
copies of any and all of such subject matter and any related documentation, or
shall provide evidence, satisfactory to ONESOFT, that all such copies have been
destroyed.
18. FORCE MAJEURE AND ACTS OF GOD
A party shall be relieved from an obligation while a cause outside the
reasonable control of the party prevents the performance of such obligation.
19. RELATIONSHIP OF THE PARTIES; CONTENT
(a) Nothing in this Agreement shall be construed as making a party an agent of
the other party, and neither party shall have the power to bind the other party
or to contract in the name of, or create a liability against, the other party.
Neither party shall be responsible for the acts or defaults of the other party
or any of the other party's employees or agents. The parties are independent
contractors with respect to all matters arising under this Agreement. Nothing
in this Agreement shall be deemed to establish a partnership, joint venture,
association or employment relationship between the parties. With respect to its
employees, a party shall remain responsible, and shall indemnify and hold
harmless the other party, for the withholding and payment of all Federal, state
and local personal income, wage, earnings, occupation, social security, worker's
compensation, unemployment, sickness and disability insurance taxes, payroll
levies or employee benefit obligations
Confidential Information 6
(b) If a Scope of Work permits CLIENT to re-sell ONESOFT Services to end-users
then the provisions of this Paragraph 19(b) shall apply to such Services,
however, the CLIENT acknowledges that the Scope of Work still governs the
relationship between ONESOFT and the CLIENT. CLIENT's relationship with any
end-user of the Services that may be distributed by CLIENT shall be governed
solely by an end-user Agreement (made available to ONESOFT upon request) that
provides at least the same protections to ONESOFT as this Agreement and the
Scope of Work provides. Any warranty provided by ONESOFT shall be solely for the
benefit of CLIENT. In no event shall any end-user of CLIENT services be
considered a third party beneficiary of any ONESOFT warranty. CLIENT shall
indemnify and hold ONESOFT harmless from any end- user claim. The CLIENT is
responsible for ensuring that third party end- users of the Services do not
impose unexpected workloads on the Services.
(c) The parties acknowledge that the Internet is neither owned nor controlled by
any one entity and that a third party may gain access to ONESOFT. Electronic
mail and other transmissions passing through ONESOFT or over the Internet are
not secure, and ONESOFT cannot guarantee the security or privacy or any of the
information or communications passing through ONESFOT. ONESOFT agrees to provide
commercially reasonable security consistent with its business practices and
facilities, including (without limitation) access control software,
identification protection, logon passwords and physical site security. In no
event however, will ONESOFT be liable for any loss or damage caused by a breach
of security by a third-party. ONESOFT will not intentionally monitor or disclose
any private electronic communications, except to the extent necessary to
identify or resolve system problems or as otherwise permitted or required by
law. ONESOFT does, however, reserve the right to monitor transmissions, other
than private electronic communications, as necessary to provide the Service and
otherwise to protect the rights and property of ONESOFT. Notwithstanding the
foregoing, ONESOFT does not assume any liability for any action or inaction with
respect to such communication or content posted or provided by an authorized or
unauthorized third party. ONESOFT is a distributor and not a publisher of
CLIENT's data or any other content provided by CLIENT or others (including end
users). Because communication of data and other content over the Internet occurs
in real time, ONESOFT cannot, and does not intend to, screen, police, edit, or
monitor communications and content. If ONESOFT is notified of any content that
allegedly violates its Client Guide, Email Authorized Use Policies, and/or is
otherwise unlawful, ONESOFT may investigate and remove or request the removal of
such content as it deems appropriate in good faith and in its sole discretion.
In no event will ONESOFT be liable for any loss or damage caused by a user's
reliance on any data or other content obtained through ONESOFT
20. FURTHER ASSURANCES
The parties agree to do all such things and to execute such further documents as
may reasonably be required to give full effect to this Agreement.
21. WAIVER
No waiver of any part of this Agreement shall be effective unless made in
writing by the waiving party. No waiver of any breach of this Agreement shall
constitute a waiver of any other breach of the same, or any other provision, of
this Agreement.
22. ENTIRE AGREEMENT AND CONSTRUCTION
This Agreement constitutes the entire agreement between the parties with respect
to the subject matter hereof and the parties agree that there are no other
representations, warranties or oral agreements relating to the subject matter of
this Agreement. Headings are included in the Agreement for convenience only and
shall not affect the meaning or construction of this Agreement's provisions.
23. AMENDMENT
This Agreement may be modified or amended only by means of a writing executed by
both parties.
24. ASSIGNIBILITY AND RESALE
Rights under this Agreement shall not be assigned, sublicensed, encumbered by
security interest or otherwise transferred or resold by CLIENT (whether by
operation of law or otherwise) without the prior written consent of ONESOFT, and
any purported assignment, sublicense, encumbrance or other transfer of such
rights, in violation of this Agreement, shall be void. An amalgamation,
acquisition, or merger of CLIENT by or with any person or entity who is not a
party to this Agreement shall be treated as an assignment of this Agreement that
is subject to the provisions of the next preceding sentence. Notwithstanding
the foregoing, if a Scope of Work so provides, CLIENT may use the Services under
the Scope of Work in support of its internal business operations and may also
distribute such Services to unrelated third parties for their internal use (by
such third party organization's own personnel) and to ultimate end-users in the
public at large, subject to the terms, conditions and limitations of this
Agreement and such Scope of Work, and provided that CLIENT shall defend,
indemnify and hold ONESOFT harmless from all costs (including reasonable
attorneys' fees) arising from any claim by a third party user such Services. In
connection with any acquisition, merger, consolidation or sale of assets to or
with another entity, ONESOFT may assign this Agreement.
25. COMPLIANCE WITH LAWS
CLIENT shall carry out the obligations contemplated by this Agreement and shall
otherwise deal with the subject matter hereof in compliance with all applicable
laws, rules and regulations, of all governmental authorities, including, without
limitation, the Export Act and any other legal restrictions on exports, and
shall obtain all permits and licenses required in connection with the subject
matter hereof.
26. SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of, and be binding upon the parties,
their successors and permitted assigns.
27. SEVERABILITY
If any provision, of this Agreement or a Product Addendum or Schedule or Scope
of Work or Change Order, is held to be unenforceable, all remaining provisions
thereof shall remain in full force and effect.
28. GENERAL PROVISIONS
(a) CLIENT shall not directly or indirectly solicit or offer employment to, or
directly or indirectly accept services by an employee or contractor of ONESOFT,
during the term of this Agreement and for two (2) years thereafter, without
consent of ONESOFT. For purposes of this Agreement, use of general employment
advertising and independent employment agencies, if not directed at ONESOFT
employees, shall not constitute solicitation.
(b) Each party (i) agrees to inform the other party of any information made
available to such other party that is classified or restricted data, (ii) if
given such information agrees to comply with the security requirements imposed
by any state or local government, or by the United States Government, and (iii)
if given such information agrees
Confidential Information 7
return all copies of such information upon request.
(c) Each party warrants and represents that its participation in this Agreement
does not conflict with any contractual or other obligation of the party or
create any conflict of interest prohibited by the U.S. Government or any other
governmental authority, and shall promptly notify the other party if any such
conflict arises during the term of this Agreement.
(d) Each party shall maintain commercially reasonable and adequate insurance
protection covering its respective activities hereunder, including coverage for
statutory worker's compensation, comprehensive general liability for bodily
injury and tangible property damage, as well as adequate coverage for vehicles.
Each party shall indemnify and hold the other harmless from liability for bodily
injury, death and tangible property damage resulting from the acts or omissions
of such party, its officers, agents, employees or representatives acting within
the scope of their work. (e) Paragraphs 1, 2(b) 2(c), 4, 9, 10, and 12 through
30 shall survive any termination of this Agreement.
29. GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
SUBSTANTIVE LAWS OF THE COMMONWEALTH OF VIRGINIA, EXCLUDING ITS CHOICE OF LAW
RULES. ANY PROCEEDING OR DISPUTE RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY, SHALL BE INITIATED AND MAINTAINED IN COURTS LOCATED IN SUCH
COMMONWEALTH.
Confidential Information 8
30. NOTICES
(a) Any notice or other communication to the parties shall be sent to the
contact points identified below or at such other places as they may from time to
time specify by notice in writing to the other party. Any such notice or other
communication shall be in writing and shall be given by delivery to the
designated party of the addressee by pre-paid courier or facsimile with receipt
acknowledgment. Any such notice or other communication shall be deemed to have
been given when the designated party of the addressee receives such notice.
(b) Point of Contact addresses are as follows:
For ONESOFT: (Technical) For CLIENT: (Technical )
Xxxxxxx X. XxxXxxxxx
OneSoft Corporation ------------------------------------
0000 Xxxxxx Xxxxx Xxxxxxxx, Xxxxx 000 ------------------------------------
Xxxxxxxxx, XX 00000-0000 ------------------------------------
Telephone: (000) 000-0000
For ONESOFT: (Contractual and Admin.) For CLIENT: (Contractual and Admin)
Xxxx X. Xxxxxxxx, Esq.
OneSoft Corporation ------------------------------------
0000 Xxxxxx Xxxxx Xxxxxxxx, Xxxxx 000 ------------------------------------
Xxxxxxxxx, XX 00000-0000 ------------------------------------
Telephone: (000) 000-0000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
OneSoft Corporation SMARTCRUISER, LLC
By: /s/ Xxxxxxx Xxxxxxxxxx By: /s/ Xxx Xxxxxxxxx
--------------------------- ---------------------------
Name: Xxxxxxx Xxxxxxxxxx Name: Xxx Xxxxxxxxx
--------------------------- ---------------------------
Title: Senior Vice President Title: President
--------------------------- ---------------------------
Confidential Information 9
OneSoft Corporation SmartCruiser, LLC
PRODUCT ADDENDUM # **********
----------------
THIS PRODUCT ADDENDUM relates to OneSoft Managed Application and Services
Agreement Number: *********** (hereinafter "Agreement") as of June 18, 1999,
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Agreement.
Each Software Product identified in the Quotation/Estimate in the attached
Schedule(s) A shall, upon execution of this Product Addendum, and subject to the
provisions of this Product Addendum and the Agreement, be deemed a Software
Product for purposes of the Agreement, for the term specified in the attached
Schedule(s), but in any event only for so long as: (a)(i) all related Recurring
Monthly Managed Application, Software Maintenance and Support Services (as
defined below) fees are and have been timely paid by CLIENT with respect to such
Software Product or (ii) the license for the Software Product is a perpetual
license; and (b) each limitation on the number of Processors, Servers, Sites,
Seats, Users and/or other limitations identified in the attached Schedule(s), if
any for each such Software Product, is and has been complied with by CLIENT with
respect to such Software Product. ONESOFT shall in no event have any obligation
to provide Software Maintenance or Support Services with respect to a Software
Product unless the installed Software Product is the then current Release.
Subject to the provisions of the Agreement and this Product Addendum, if a
license identified in Schedule A is designated as "perpetual" then such license
shall continue indefinitely unless terminated pursuant to the Agreement or this
Product Addendum.
Under this Product Addendum, CLIENT is receiving a license only for use with the
unit(s) of measure specified for each Software Product, and only for use on a
Server operated by ONESOFT, CLIENT, or CLIENT's designee inside the continental
United States. The Initial License fees (including the first year of Software
Maintenance and Installation fees), are listed for each Software Product on
Schedule A. For those Software Products that are to be managed on a Server
operated by ONESOFT, the monthly Managed Application and any additional Software
Maintenance and Support Services fees associated with each Software Product are
also listed on Schedule A. As long as all applicable fees are and have been
timely paid by CLIENT for each Software Product listed on Schedule A, ONESOFT
shall supply Software Maintenance and Support Services for the Software
Product(s) pursuant to the Agreement.
If the Software Products are not used on a Server operated by ONESOFT on a
Managed Application basis then Software Maintenance and Support Services fees
for any Renewal Support Year (defined as each yearly period beginning with the
first anniversary of the effective date of this Product Addendum), shall be
billed to the CLIENT at the rate of ***% of then-current ******** license fee
for each Software Product. If fees for Software Maintenance and Support Services
are not timely paid for a Renewal Support Year, Maintenance and Support Services
shall lapse and may only be re-instated if CLIENT pays all unpaid fees for each
Renewal Support Year (whether or not services were received) since the effective
date of this Product Addendum together with an additional fee equal to *******
(***%) percent of such unpaid fees.
For a Software Product licensed on a month-to-month basis, upon completion of
the related Managed Application term, the CLIENT has the option to purchase a
perpetual, non-exclusive object code license of such Software Product for a
discounted fee of ***% of the ********** for each Software Product.
Error Correction and Telephone Support Services Provisions
ONESOFT shall provide a 24/7 toll free support number monitored by a
ONESOFT employee, to handle all customer inquiries. ONESOFT shall use reasonable
commercial efforts to correct or provide a usable work-around solution for any
reproducible material error in the Software Product(s) within a reasonable
period of time. Additionally, ONESOFT shall use reasonable commercial efforts to
provide technical support for its managed hardware that mechanically
malfunctions. ONESOFT agrees, if feasible, to the following response times when
such an error or malfunction is detected: 1) for Severe situations (those in
which the Customer is unable to conduct its normal Internet business
operations), *****************; 2) for Moderate situations (those in which the
Customer's System is substantially operational but requires a patch, workaround
or bug fix), **************; and 3) for Minor situations (those in which the
error or malfunction is merely an annoyance), **************.
ONESOFT shall, during the hours of 8:00 a.m. to 8:00 p.m. in ONESOFT's home
office time zone on weekdays (exclusive of
1
OneSoft Corporation SmartCruiser, LLC
holidays), make reasonable knowledge base telephone support available to
CLIENT's Point of Contact identified in the Agreement, a Scope of Work, and/or
this Product Addendum, and other personnel of CLIENT who have been trained in
the use of the Software Product(s). ONESOFT reserves the right to require CLIENT
to reimburse ONESOFT for long distance telephone charges incurred by ONESOFT in
the provision of telephone support and for expenses associated with determining
if technical support was reasonably required by CLIENT.
If ONESOFT, in its discretion, requests written verification of an error or
malfunction discovered by CLIENT, CLIENT shall promptly provide such
verification, by email, facsimile, or overnight mail, setting forth in
reasonable detail the respects in which the Software Product(s) fail to perform.
An error or malfunction shall be "material" if it represents a nonconformity
with ONESOFT's current published specifications for the Software Product(s) that
interferes with the usability of the Software Product(s). ONESOFT is not
obligated to fix errors that are not material. If applicable to a perpetual
license, and upon request, CLIENT shall provide ONESOFT remote access to
CLIENT's Server for the purpose of remote diagnostics.
If applicable to a perpetual license, CLIENT will install the equipment and
software as required by ONESOFT to permit any of the Software Maintenance and
Support Services to be delivered electronically.
CLIENT shall pay ONESOFT at ONESOFT'S then current time and material rates
for work of ONESOFT spent investigating an error or malfunction that ONESOFT
reasonably determines to have been caused by a modification to the Software
Product(s) not made nor authorized in writing by ONESOFT.
IN WITNESS WHEREOF, the parties have executed this Product Addendum effective as
of the date first written above.
OneSoft Corporation SmartCruiser, LLC
By: /s/ Xxxxxxx Xxxxxxxxxx By: /s/ Xxx Xxxxxxxxx
---------------------- -----------------
Name: Xxxxxxx Xxxxxxxxxx
---------------------- Name: Xxx Xxxxxxxxx
-----------------
Title: Senior Vice President
---------------------- Title: President
-----------------
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OneSoft Corporation SmartCruiser, LLC
SCHEDULE A
PRODUCT LISTING AND PRICING
**************
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