Exhibit 10.15
SOFTWARE LICENSE AND OEM AGREEMENT
This SOFTWARE LICENSE AND OEM AGREEMENT (the "Agreement") is entered into
as of February 2, 2000 between Delano Technology Corporation, an Ontario
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corporation having its principal place of business at 00 Xxxx Xxxxxx Xx.,
Xxxxxxxx Xxxx, Xxxxxxx, X0X 0X0, (hereafter "Delano") and Ironside Technologies
Inc. a Yukon corporation, including its subsidiaries (hereafter "OEM"), having
its principal place of business at 000 Xxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx
X0X 0X0 ("Shipping Address").
WHEREAS, Delano is a software developer and has developed certain Software
which it desires to distribute.
WHEREAS, OEM wishes to acquire a license to use Delano's Software for the
purposes set out in this Agreement and also to be appointed as an Authorized OEM
so it may make the Software available to OEM's customers under the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties agree as follows:
1. DEFINITIONS
The following terms have the defined meaning when used in this Agreement:
(a) "Documentation" shall mean the documents or other information
pertaining to the Software, which items are provided to End Users in
combination with the Software.
(b) "Effective Date" means the day the last of the parties hereto signs
this Agreement.
(c) "End User" shall mean any person or entity who acquires a license to
use the Software for his or her own use or, if an entity, for its
internal use, rather than for purpose of redistribution.
(d) "Ironside Module(s)" means a software application developed by OEM
which incorporates the Software. Such Ironside Module(s) shall be
developed either solely or in collaboration with Delano or other third
parties in accordance with this Agreement. Ironworks Customer
Interaction Module is an example of an Ironside Module.
(e) "Software" shall mean the executable object code of the Delano
proprietary software product(s), and all applicable Documentation,
Updates, and Upgrades to the Software, set out in the then current
version of Exhibit A, from time to time.
(f) "Territory" means the territory in which the OEM is authorized to
engage in redistribution of the Software as described in Exhibit A.
(g) "Unit" means one copy of a respective Delano software program in
object code form, Documentation, and other related materials, if any,
supplied to OEM in a commercial package by Delano.
(h) "Update" shall mean a replacement of all or a portion of the Software
that is primarily intended to fix an error or deficiency in the
Software.
(i) "Upgrade" shall mean a replacement of all or a portion of the Software
that is primarily intended to add functionality or performance to the
Software, for which a separate or additional charge is made to the End
User and which is made generally available.
2. GRANT OF RIGHTS, APPOINTMENT AND TERM.
(a) Delano hereby grants to OEM a perpetual, non-exclusive, non-
transferable license to use the Software, for the purposes of
demonstrations, design, developing and testing of the Ironside
Module(s) to be licensed to End Users in conjunction with the
Software, in accordance with the terms, conditions and any
restrictions set out in this Agreement and, in particular, Exhibit X.
Xxxxxx grants to OEM the worldwide, non-exclusive rights to market,
sell and distribute the Software directly and through multiple tiers
of distribution (as described in Exhibit A). Delano agrees to provide
OEM with sufficient numbers of demonstration copies of Software to
enable OEM and its resellers to exercise the rights granted herein.
OEM agrees to be a vendor reference account for Delano. Each of the
parties will allow the other party to identify each other as a
technology partner.
(b) Subject to the terms and conditions set forth herein (and, in
particular, Exhibit A), Delano hereby appoints OEM and OEM hereby
accepts appointment as a non-exclusive Authorized OEM of the Software.
(c) Delano and OEM may mutually agree to amend Exhibit A from time to
time, and the amendments will be effective upon mutual execution by
Delano and OEM. Future Software are deemed added to this Agreement at
such time as they are added to the current Exhibit A.
(d) The term of this Agreement shall commence on the Effective Date and
continue for two (2) years thereafter. OEM shall have the option to
renew the Agreement on terms substantially similar to those contained
herein for additional one-year periods by providing written notice to
Delano within sixty (60) days of expiration.
(e) A current copy of the source code for the Software is held in escrow
pursuant to a third party escrow agreement with Fort Know Escrow Svcs.
OEM may, at its option and expense, at any time provided OEM is
currently under maintenance, request that Delano register OEM as a
third party beneficiary to this agreement.
3. OEM RIGHTS AND RESTRICTIONS.
(a) Development. Except as noted herein, OEM shall not allow any third
party to use the Software without written permission from Delano, such
permission shall not be unreasonably withheld, in the development of
the Ironside Module(s). All such development work shall be performed
by OEM employees or contractors, which contractors are hereby pre-
approved by Delano.
(b) Distribution. OEM agrees to distribute the Software solely in
accordance with the terms, conditions and restrictions set forth in
Section 2(a) and Exhibit A. OEM agrees not to distribute the Software
to End Users, Partners or OEMs, except as incorporated into or used
with the Ironside Module(s).
(c) Restrictions on Copying and Decompiling. OEM AGREES NOT TO COPY (with
the exception of a reasonable number of backup copies), TRANSLATE,
DISASSEMBLE, REVERSE ENGINEER DIRECTLY OR INDIRECTLY, OR DECOMPILE THE
SOFTWARE IN WHOLE
OR IN PART. OEM shall not make copies or make media translations of
the Documentation, except such documentation, which includes
information about Ironside Modules, and a reasonable number of backup
copies.
4. OEM OBLIGATIONS.
(a) Marketing. OEM will use reasonable efforts to market and distribute
the Software in conjunction with Ironside Module(s), and agrees that
its marketing and advertising efforts will be of high quality and in
accordance with applicable law.
(b) Piracy Reports. OEM agrees to use its best efforts to promptly report
to Delano any suspected illegal use or copying of Software.
(c) Warranty. OEM shall provide its standard warranty for all Ironside
Module(s) incorporating the Software.
(d) Notice. Subject to reasonable confidentiality restrictions, each party
will give the other thirty (30) day's prior written notice of any
change in ownership.
(e) Records, Reports and Taxes. OEM agrees to maintain a complete, clear
and accurate record during the Term, for rolling two (2) year periods
of the number of units of the Software distributed in conjunction with
Ironside Module(s), the names of Ironside Module(s) licensees, and the
payments received therefor irrespective of the source. Upon request,
but no more often than two (2) times per calendar year, OEM shall
provide such records to Delano. Upon reasonable notice to OEM by
Delano, OEM shall permit a third party auditor from a nationally
recognized accounting firm under obligations of confidentiality to OEM
and to Delano to inspect records pertaining to the Software and any
other materials provided to OEM by Delano to ensure compliance by OEM
with its obligations to Delano. Any such inspection and audit shall be
conducted during regular business hours and in such a manner as not to
interfere with normal business activities of OEM. The inspection
or/and audit shall be at Delano's expense unless the inspection and/or
audit reveals an underpayment by OEM of greater than ten (10) percent
of the amounts due, in which case OEM shall bear the expense of the
inspection and/or audit. In addition to any payments due to Delano
under this Agreement, OEM shall pay amounts equal to any taxes,
duties, or other amounts, including national, provincial, state,
regional or municipal sales taxes, however designated, which are
levied or based upon such payments, or upon this Agreement, provided,
however, that OEM shall not be liable for taxes based on Delano's net
income. OEM agrees to provide Delano with a government resale
certificate, if required by any government.
(f) Support. OEM acknowledges the necessity of providing adequate service
and support in connection with the distribution of the Software in
conjunction with Ironside Module(s). OEM is required to gain
qualification as an Authorized OEM by successfully completing, at no
expense to OEM, the required Delano technical and sales training, as
outlined in Exhibit B. For the Software, OEM will be responsible for
first line support (i.e., receiving support requests from customers
and recording issues requiring resolution). For Ironside Modules
developed by Ironside, Ironside will provide all support. For Ironside
Modules developed by Xxxxxx, Xxxxxx will provide third level support.
5. DELANO'S OBLIGATIONS.
(a) Support. For the Software, Delano will provide second (i.e.,
diagnosing and providing fixes for problems relating to configuration,
platform and environment) and third (resolving all other software-
related issues, e.g., those which require engineering assistance) line
support to OEM's support team via, phone, fax and e-mail for the term
of the agreement as follows: Delano will provide, at no charge, up to
five full days of training on the Software at Delano's facilities to
up to two (2) OEM personnel responsible for end user support of the
Software. All training shall be conducted in English. Delano will
provide second and third line support directly to OEM during OEM's
normal business hours and in the English language in accordance with
the Severity Level Agreement ("SLA") Table set forth below. The
severity level of any case shall be determined by OEM acting
reasonably and in good faith.
SEVERITY LEVEL AGREEMENT TABLE
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Severity Electronic Phone Description of Problem Status Resolution time Hours of
Level Response Response Frequency from Customer Operation
Acknowledge Acknowledge Care case
Time Time (back up logged time
process)
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1 - System 2 hours 2 hours A production system is Daily or 2 business days 8:30 am
Down or either completely negotiated per workaround or 8:30 pm EST
Development unavailable or a problem plan of action agreed to action US Business
process is occurring so often that plan in place Days
stopped the system is effectively
rendered inoperable,
scheduled production is in
a day-for-day slip due to
stalled solution
development.
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2 - Critical 4 hours 4 hours Production system Weekly or 4 business days 8:30 am
functionality is limited negotiated workaround or 8:30 pm EST
such that critical per plan of agreed to action US Business
business processes are action plan in place Days
impacted. Or the
development process is
severely impaired and the
problem will prevent the
project from going live.
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3 - Major 1 business day 1 business day A production system is Weekly or 20 business days 8:30 am
impaired, but key business negotiated per to resolution or 8:30 pm EST
processes are not plan of action agreed to action US Business
interrupted. A plan in place. Days
work-around exists
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4 - Minor or 2 business days 2 business days Indicated a minor issue N/A Acknowledge 8:30 am
Suggestion that does not require an receipt 8:30 pm EST
immediate response. US Business
Days
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6. LICENSE TO USE THE DELANO TRADEMARK.
(a) Advertising. Delano hereby grants to OEM a nonexclusive, limited
license to use "Delano" (both in the stylized form used by Delano, and
as a word, and any other the applicable Software trademarks (the
"Trademarks"), but solely in OEM's distribution, advertising, and
promotion of the Ironside Module(s). OEM's use shall be substantially
in accordance with OEM's own policies regarding advertising and
trademark, trade name and logo usage.
(b) Quality. OEM agrees that the nature and quality of any products or
services OEM supplies in connection with the Trademarks shall conform
to the standards comparable to the standards used by OEM for all other
products it sells and services. OEM agrees to cooperate with Delano in
facilitating Delano's monitoring and control of the nature and quality
of such products and services, and to supply Delano with specimens of
use of the Trademarks upon request.
7. OWNERSHIP OF PROPRIETARY RIGHTS AND NONDISCLOSURE.
(a) OEM acknowledges Delano's claim that the Software is proprietary to
Delano and that, notwithstanding any other provision of this
Agreement, all right, title and interest in and to the Software and
without limitation the Trademarks, is and shall remain vested in
Delano or Delano's affiliated companies or licensors. OEM will take
all reasonable measures to protect Delano's proprietary rights in the
Software, and to maintain the confidentiality of the Software. Except
as provided herein, OEM is not granted any rights to patents,
copyrights, trade secrets, trade names, trademarks (whether registered
or unregistered), or any other rights, franchises, or licenses with
respect to the Software.
(b) All right, title and interest in and to the Ironside Module(s)
(excluding the Software) will be and remain vested in OEM.
Notwithstanding the foregoing or any other provision of this
Agreement, nothing herein contained shall prevent either party from
independently developing and commercializing any application(s) which
are the same as or similar in functionality to any Ironside Module(s)
or Software.
8. WARRANTY AND INDEMNIFICATION
(a) Software Warranty. Delano warrants that, for a period of one hundred
eighty (180) days from installation, the Software (and any updates or
upgrades thereto) shall conform to its Documentation. In the event of
a breach of the foregoing warranty, Delano shall promptly cure any
non-conformity or, if such cure is not technically feasible, refund
amounts paid to Delano for any such Software.
(b) Infringement Warranty. Delano further warrants that the Software does
not infringe any third party proprietary rights, including without
limitation patent, copyright, trade secret, trade dress or trademark
right.
(c) Proprietary Rights Indemnity. Delano shall defend at its own expense
and indemnify and hold harmless OEM from all claims, costs, expenses
and damages (including attorneys' fees) arising from any claim, suit,
or proceeding brought against OEM arising from a breach of the
warranty set forth in 8(b) above. To qualify for such defense and
payment the OEM must: (i) give Delano prompt written notice of any
such claim; and (ii) allow Delano to control, and fully cooperate with
Delano in, the defense and all related settlement negotiations,
provided that OEM shall have the right to reasonably approve any
settlement. Upon notice of an alleged infringement or if in Delano's
opinion such a claim is likely, Delano shall have the right, at its
option, to obtain the right to continue the distribution of Software,
substitute other computer software with similar operating
capabilities, or modify the Software product so that it is no longer
infringing, or, if none of the above options are feasible, Delano may
provide OEM, as OEM's sole and exclusive remedy, with notice
terminating this Agreement, after receipt of which OEM shall cease
using, and shall return to Delano, all copies of the Software, and
Delano shall provide OEM with a refund of the fee paid by OEM for such
inventory (and of the unused portion of any fee actually paid for a
Unit of the Software used by OEM as an End User).
(d) Limitations and Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET
FORTH ABOVE, DELANO MAKES NO OTHER WARRANTIES RELATING TO THE
SOFTWARE, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES ANY WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. OEM SHALL MAKE NO
OTHER WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF DELANO.
(e) Indemnity. Each party shall indemnify and hold the other harmless from
any claims or damages (inclusive of reasonable lawyers' fees) made
against the indemnified party as a result of negligence or
misrepresentation on the part of the indemnifying party.
9. TERMINATION
(a) With Cause. (i) Either party may terminate this Agreement upon thirty
(30) days written notice of a material breach of this Agreement if
such breach is not cured within such thirty (30) day period. (ii)
Notwithstanding the above, either party, as applicable, may terminate
this Agreement upon ten (10) days' written notice, for breach of
Paragraphs 3 ("OEM Rights and Restrictions"), 6 ("License to Use the
Delano Trademark"), or 7 ("Ownership of Proprietary Rights and
Nondisclosure"). (iii) Either party may terminate this Agreement after
giving a fifteen (15) day written notice if the other shall become
insolvent or fail to pay its obligations (except for disputed
payments) as they arise or upon any proceeding being commenced by or
against the other under any law providing relief to either party as
debtor.
(b) Without Cause. This Agreement may be terminated at any time by either
party without cause upon ninety (90) days prior written notice.
(c) Rights Upon Termination. Upon termination of this Agreement: (i) OEM
will no longer be an Authorized OEM. (ii) OEM shall immediately cease
using the Trademarks and discontinue all representations that it is an
Authorized OEM. (iii) Upon termination of this Agreement: (A) OEM
shall submit to Delano within fifteen (15) business days after the
effective date of termination a summary of the number of the
respective Software products owned by OEM as of the effective date of
the termination. Delano may, at its option, repurchase any or all of
such Software from OEM upon written notice of its intention to do so
within thirty (30) days after receiving the inventory summary, or at
any time during the sixty (60) day period described in this Section
9(B), at prices equal to the respective prices paid by OEM for such
Software. After Delano's receipt of the Software from OEM, Delano will
issue an appropriate credit to OEM's account and refund any amount
greater than the outstanding balance due Delano. (B) If Delano chooses
not to exercise its rights to repurchase OEM's inventory, OEM shall
have sixty (60) days from the effective date of termination to
distribute its inventory pursuant to the terms and conditions of this
Agreement. If Delano terminates the Agreement, in addition to OEM's
other rights herein, Delano will at OEM's option: (A) refund any
prepaid licenses referenced in Exhibit B or (B) allow OEM one hundred
eighty (180) days to sell copies of Software in inventory.
10. CONSEQUENTIAL DAMAGES WAIVER
NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF
BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF
ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY,
OR OTHERWISE, EVEN IF DELANO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
11. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, EXCEPT FOR SECTION
8, THE AGGREGATE LIABILITY OF DELANO, UNDER ANY THEORY OF LAW OR EQUITY,
INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, NEGLIGENCE OR
OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT IS
LIMITED TO THE TOTAL PAYMENT MADE BY OEM TO DELANO PURSUANT TO THIS
AGREEMENT SINCE INITIAL EXECUTION DATE OF THE AGREEMENT.
12. YEAR 2000 COMPLIANCE
The Software is designed to manage data involving dates including single-
century and multi-century transactions, and will not cause an abnormally
ending scenario within the application or generate incorrect values or
invalid results involving either single-century or multi-century
transactions, provided at all times that all century dates transmitted to
the Software from any host computer are accurately transmitted in a four
digit date format (for example 2001).
13. ARBITRATION
Section 13.1 Best Endeavors to Settle Disputes. In the event of any
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dispute, claim, question or difference relating to this Agreement, or the
validity or termination of this Agreement (other than in respect of
disputes as to any matter for which other settlement procedures are
expressly provided for in this Agreement, which disputes shall be resolved
in accordance with such procedures) the Parties involved in the dispute,
claim, question or difference shall use their best endeavors to settle such
dispute, claim question or difference. To this effect, they shall consult
and negotiate with each other, in good faith and understanding of their
mutual interests, to reach a just and equitable solution satisfactory to
such Parties.
Section 13.2 Arbitration. Except as is expressly provided in this
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Agreement, if the parties involved in the dispute do not reach a solution
after reasonable efforts to do so pursuant to Section 13.1, then upon
written notice by any Party to the other, such dispute shall be finally
settled by arbitration. Such arbitration shall be conducted in accordance
with the International Arbitration Rules (the "Rules") of the American
Arbitration Association (the "AAA") except as such Rules are superseded by
this Agreement. The decision or award of the arbitrator shall be in
writing, binding upon the parties, and shall be enforceable by judgement
entered in any court of competent jurisdiction.
Section 13.3 Arbitration Procedure. Any arbitration commenced by a Party
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pursuant to Section 13.2 shall be based upon the following:
(a) the arbitration tribunal shall consist of one arbitrator appointed by
mutual agreement of the parties involved who is qualified by education
and training to pass upon the particular matter to be decided, or in
the event of failure to agree within 30 business days after referral
of the dispute to arbitration, either Party may apply to the AAA
administrator to appoint an arbitrator in accordance with the Rules;
(b) the arbitrator shall be instructed that time is of the essence in
proceeding with his/her determination of the dispute and, in any
event, the arbitrator shall endeavor to render a decision and award
within 60 days of the final appointment of the arbitrator;
(c) the arbitration shall take place in Xxxxxxx, Xxxxxxx, unless the
parties mutually agree, in writing, upon a different location;
(d) the law to be applied in connection with the arbitration shall be as
set forth in Section 13(h) hereof;
(e) judgment upon the award rendered may be entered in any court of
competent jurisdiction, or, application may be made to such court for
a judicial recognition of the award or an order of enforcement
thereof, as the case may be; and,
(f) the arbitration award shall deal with the question of costs of
arbitration and all matters related thereto.
Section 13.4 Injunctive Relief. Nothing in this Article 13 shall prevent
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a Party from seeking injunctive relief in connection with this Agreement at
any time prior to or during the pendency of any proceedings set forth in
Sections 13.1 through 13.3 hereof.
13. MISCELLANEOUS.
(a) Notices. Any notices permitted or required under this Agreement shall
be in writing, and shall be delivered in person, by facsimile, by
overnight courier or by certified or registered mail, return receipt
requested, and shall be deemed given upon personal delivery, receipt
by sender of confirmation of transmission by facsimile or five (5)
days after deposit in the mail. If notice is sent to Delano, it shall
be sent to the attention of the CFO, with a copy to the General
Counsel.
(b) Assignment. This Agreement may not be assigned by either party without
the prior written approval of the other, such approval shall not be
unreasonably withheld. For the purposes of this Section, a change in
the persons or entities who control 50% or more of the equity
securities or voting interest of OEM or Delano shall be considered an
assignment. Notwithstanding the foregoing, either party shall have the
right to assign this Agreement to its majority owned subsidiaries.
(c) Waiver. The waiver by either party of a breach of any provision
contained herein shall be in writing and shall in no way be construed
as a waiver of any succeeding breach of such provision or the waiver
of the provision itself.
(d) Severability. If any provision of this Agreement shall be
unenforceable or invalid under any applicable law or be so held by
applicable court decision, such unenforceability or invalidity shall
not render this Agreement unenforceable or invalid as a whole, and, in
such event, such provision shall be changed and interpreted so as to
best accomplish the objectives of such provision within the limits of
applicable law or applicable court decisions.
(e) Injunctive Relief. It is expressly agreed that a violation of
Paragraphs 3 ("OEM Rights and Restrictions"), 6 ("License to Use the
Delano Trademark"), or 7 ("Ownership of Proprietary Rights and
Nondisclosure") of this Agreement may cause irreparable harm to Delano
and that a remedy at law would be inadequate. Therefore, in addition
to any and all remedies available at law, Delano will be entitled to
seek an injunction or other equitable remedies in all legal
proceedings in the event of any threatened or actual violation of any
or all of the provisions hereof, and need not post a bond as security
for same.
(f) Waiver of Jury. The parties expressly waive any right to a trial by
jury and so any trial of any claim, matter, issue or motion arising
out of or in any way related to this Agreement will be by and only to
the court.
(g) Confidentiality. Any Confidentiality Agreement referenced in Exhibit A
will apply to the subject matter of this Agreement and is incorporated
into this Agreement by this reference.
(h) Controlling Law. This Agreement shall be governed in all respects by
the laws of Ontario, Canada as such laws are applied to agreements
entered into and to be performed entirely within Ontario between
Ontario residents. Toronto shall be the venue of any dispute
resolution.
(i) No Agency. Nothing contained herein shall be construed as creating any
agency, partnership, or other form of joint enterprise between the
parties.
(j) Counterparts. This Agreement may be signed in two counterparts, which
together shall form a single agreement as if both parties had executed
the same document. Facsimile copies are as binding as originally
signed copies.
(k) Entire Agreement. This Agreement completely and exclusively states the
Agreement of the parties regarding its subject matter. It supersedes,
and its terms govern, all prior proposals, agreements, or other
communications between the parties, oral or written, regarding such
subject matter. This Agreement shall not be modified except by a
written amendment signed on behalf of Delano and OEM by their duly
authorized representative, and any provision of a purchase order
purporting to supplement or vary the provisions hereof shall be void.
(l) Warranty. EACH PARTY WARRANTS THAT IT HAS FULL POWER AND AUTHORITY TO
ENTER INTO AND PERFORM THIS AGREEMENT, AND THE PERSONS SIGNING THIS
AGREEMENT ON THEIR BEHALVES HAVE BEEN DULY AUTHORIZED AND EMPOWERED TO
ENTER INTO THIS AGREEMENT. EACH PARTY FURTHER ACKNOWLEDGES THAT IT HAS
READ THIS AGREEMENT, UNDERSTANDS IT, HAS HAD AN OPPORTUNITY TO OBTAIN
LEGAL ADVICE, AND AGREES TO BE BOUND BY IT.
(m) Articles 7, 8, 9, 10 and 11 and Sections 14(f), 14(g), 14(h), 14(k)
and this Section 14(m) shall survive any termination of this
Agreement.
(n) The following Exhibits form part of this Agreement and are deemed to
be a part of it for all purposes:
Exhibit A - General Terms and Conditions
Exhibit B - Required Delano Training and Certification Programs
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
set forth above.
IRONSIDE TECHNOLOGIES INCORPORATED:
Signature: /s/ XXXXX XXXXX
Print Name/Title: XXXXX XXXXX, COO
Date: 02/04/00
DELANO TECHNOLOGY CORPORATION:
Signature: /s/ XXXXXX XXXXX
Print Name/Title: XXXXXX XXXXX.VP
Date: 02/24/00
Exhibit A - General Terms and Conditions
1. Software and Documentation
Delano E-Business Interaction Suite Software, including Delano E-Business
Interaction Server; E-Business Application Builder; E-Business Interaction
server Administrator; Component Development Kit, and successor and replacement
products for the foregoing.
2. Fees and License Restrictions
License Fees and Restrictions:
(a) Development. OEM shall receive a license to develop Ironside Module(s)
using Delano E-Business Interaction Suite Software, including Delano
E-Business Interaction Server; E-Business Application Builder; E-
Business Interaction server Administrator; Component Development Kit;
and successor and replacement products for the foregoing at no charge
to OEM.
(b) Value Added OEM. For each Ironside Module(s) licensed to an End User
(either through direct sale or Application Service Provider (ASP)
agreement) in conjunction with the Software or any portion thereof,
OEM will pay Delano the following license fee:
(i) For each Ironside Module licensed in this Agreement, the
greater of US $25,000 or 50% of all net revenue relating solely
to the Ironside Module(s) (exclusive of any revenue relating to
Maintenance Fees relating to the Ironside Module(s))
("Revenue") received therefore by OEM.
(ii) Service-based OEM. For each Ironside Module(s) sold on an
application subscription or service bureau basis delivered
through a direct (OEM) or indirect (OEM's Partners and
Resellers), 50% of all Revenue received therefor by OEM
(exclusive of any revenue relating to Maintenance Fees relating
to the Ironside Module(s)).
(iii) OEM may resell Delano e-Business Interaction Server ("Delano
Software") to Ironside Module(s) users. E-Business Interaction
Server to be supported directly by Delano. For such Delano
Software, OEM shall pay Delano 50% of the then current Delano
list price, or 50% of net revenue received for Delano Software,
whichever is greater. If Delano supports such Delano Software
customers directly, it will be entitled to receive 75% of
annual maintenance on Delano Software. If OEM provides first
line support Delano Software customers, Delano will receive 50%
of annual maintenance. OEM shall only be entitled to
sell/deliver Delano Software (i.e., Builder, Server, etc.) to
OEM clients who have Delano OEM-based products (i.e., Ironside
Module(s)).
(iv) Ironside shall pay Delano its portion of Ironside Module
license fees and service-based OEM fees or revenues for sales
of Delano Software within ten (10) days of Ironside having
actually received such monies from End Users.
Maintenance Fees:
OEM will pay to Delano a maintenance fee equal to 25% of the net revenue
received by OEM for maintenance of each Ironside Module(s) licensed.
Ironside shall pay Delano its portion of such maintenance fees within ten
(10) days of Ironside having actually received such monies from End Users.
3. Territory
Worldwide
4. Other Terms and Conditions
End User licensing terms and conditions:
OEM will have the right to sublicense the Software in conjunction with
Ironside Module(s) under OEM a trademark for "Ironside Module(s)" to be
determined by OEM. Notwithstanding any other provision of this Agreement,
OEM will include the following provisions in its form of license agreement
with any End User to whom Software is sublicensed in conjunction with a
Ironside Module(s):
(a) provision restricting the End User's use of any Software sublicensed
by OEM to its own internal business purposes;
(b) provision prohibiting the End User from reproducing (except for backup
copies), reverse engineering, translating or creating other versions
of any Software sublicensed by OEM;
(c) provision acknowledging that ownership of the copyright and all other
intellectual property rights in and to any Software sublicensed by OEM
remains exclusively vested in OEM's licensor(s); and
(d) provision limiting the liability to the End User of any licensor of
Software sublicensed by OEM to the same or greater extent than the
liability of Delano to OEM is limited under this Agreement.
5. Details of the Confidentiality Agreement
(a) Date: November 8, 1999
(b) Parties: Ironside and Delano Technology
Exhibit B - Required Delano training and certification programs
To be considered for Delano's Partner Program, a company must meet the
following criteria:
Maintain sales and technical personnel on staff who have attended and
successfully completed required Delano Center for Excellence training and
certification programs.
Currently the Delano Sales Certification is one (1) day in duration. This
course covers all sales aspects of the E-Business Interaction Suite with regards
to product positioning, licensing, etc.
The Delano Technical Certification is currently two (2) days. This course
covers all technical aspects of the E-Business Interaction Suite, product
installation, systems integration, etc.
Delano agrees to provide training similar to that described above for
future versions and releases of the Software.
All training outlined in this Exhibit B will be provided by Delano at no
charge.
