BUSINESS PARTNER AGREEMENT
This Business Partner Agreement ("Agreement") is made effective the ____ day of
_____, 2000 ("Effective Date") between SILVERSTREAM SOFTWARE, INC.
("SilverStream") with offices at 0 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
00000, and ___________________________ ("Partner") with offices at
___________________________________________. 1. BUSINESS PARTNER PROGRAM. The
Business Partner Program to which Partner has subscribed, and the benefits (the
"Program Benefits") and fees and requirements (the "Program Requirements")
associated with the Business Partner Program, are as set forth in Exhibit A
attached hereto and made an integral part hereof and as set forth in the
"Program Benefits and Requirements" matrix attached hereto and made an integral
part hereof. SilverStream may from time to time change the Program Benefits and
Program Requirements by giving Partner thirty (30) days' prior written notice.
Partner represents that it meets or will meet within sixty (60) days of the
Effective Date the Program Requirements and agrees to maintain such
qualification during the period of this Agreement. Partner shall undertake all
obligations set forth as Program Requirements. SilverStream shall provide to
Partner all Program Benefits.
2. TERM. This Agreement will become effective as of the Effective Date and shall
continue in force for a period of one (1) year (the "Initial Term"), subject to
earlier termination as herein provided. Thereafter, provided that Partner is not
then in default of this Agreement, this Agreement shall automatically renew for
additional one (1) year periods (each a "Renewal Term", and together with the
Initial Term, the "Term") unless written notice of termination is given by
either party at least thirty (30) days prior to the expiration of the Initial
Term or the then-current Renewal Term, as the case may be. 3. FEES AND PAYMENT
TERMS. For each year of this Agreement, Partner shall pay SilverStream the fees
set forth in the Program Requirements. The initial enrollment fee is due upon
execution of this Agreement and renewal fees are due at or prior to renewal. All
fees hereunder are due and payable within thirty (30) days of the date of
SilverStream's invoice for such fees. Any past-due invoice may subject Partner
to immediate termination of this Agreement at the sole discretion of
SilverStream. All fees under this Agreement are stated in United States Dollars
and all payments from Partner to SilverStream shall be made in United States
Dollars and sent to Partner at the address set forth above, Attention: Accounts
Receivable.
4. TAXES. All fees and other amounts paid by Partner to SilverStream hereunder
are exclusive of all federal, state, municipal, excise, sales, use, value added,
property or other similar taxes and import duties, now in force or enacted in
the future by any community of nations or any nation or political subdivision,
all of which shall be paid by Partner, except for such taxes as are imposed on
SilverStream's income, which shall be paid by SilverStream. Partner is
responsible for obtaining and providing to SilverStream any certificate of
exemption or similar document required to exempt any sale from sales, use or
similar tax liability.
5. TRADEMARKS, ETC.
5.1 All patents, trademarks, tradenames, domain names, copyrights, logos and
designs used by SilverStream in connection with its business shall be and remain
the property of SilverStream, or the owner of such, as applicable, and no rights
to duplicate such property shall accrue to Partner unless expressly provided
herein or unless written permission is granted by SilverStream or the owner of
such, as applicable. Partner shall include and shall not alter, obscure or
remove any trademark or tradename used or claimed by SilverStream, or any
markings, logos, colors or other insignia which are contained on or in or
affixed to any materials supplied to Partner by SilverStream (collectively with
any domain name including the word "SilverStream", the "SilverStream Marks").
5.2 Subject to the terms and conditions of this Agreement, SilverStream hereby
grants to Partner during the Term a non-exclusive, non-assignable and
non-transferable right and license to use the SilverStream Marks in the conduct
of its business in a style and manner approved by SilverStream in writing prior
to such use. Partner shall forward to SilverStream for its prompt review and
approval any and all forms of proposed advertising or promotional materials of
Partner which include a SilverStream Xxxx. Partner may, in advertising,
promotional materials, letterheads, invoices, and other appropriate documents,
describe itself as an "Authorized Partner of SilverStream Software, Inc."
Nothing herein shall give Partner any right, title, or interest in the
SilverStream Marks except the right to use the same during the Term and in
accordance with its terms. Any use of the SilverStream Marks by or with the
authority of Partner shall inure to the benefit of SilverStream. Partner will
not, during or after the Term, claim any ownership or similar interest in any of
the SilverStream Marks. Partner agrees it shall not, and it shall not cause or
assist any third party to, register or attempt to register, in its own name or
otherwise, any of the SilverStream Marks or any other trademarks, service marks,
or slogans owned by or associated with SilverStream or any derivative of any of
these. In the event that Partner secures or has secured in any jurisdiction any
rights to any of the SilverStream Marks or any of such other marks or slogans
which are prior to or greater than the rights owned by SilverStream, then
Partner shall immediately notify SilverStream of same and, upon written request
from SilverStream, assign all of Partner's right, title, and interest therein to
SilverStream (or its designee). Partner agrees to notify SilverStream in writing
of any apparent infringement of any of the SilverStream Marks, which comes to
the attention of Partner. Upon termination of this Agreement for any reason, all
rights and licenses granted to Partner hereunder shall terminate and revert
immediately to SilverStream and Partner shall immediately cease using the
SilverStream Marks. Partner acknowledges and agrees that the SilverStream Marks
have a unique character giving them a peculiar value, the loss of which cannot
reasonably or adequately be compensated for by monetary damages, and that the
violation by Partner of the provisions hereof concerning the same or of
SilverStream's rights therein are likely to cause irreparable damage and injury.
Partner hereby expressly agrees that SilverStream will be entitled to equitable
relief to prevent or cure any violation or infringement or threatened violation
or infringement of SilverStream's rights in the SilverStream Marks.
5.3 SilverStream shall be entitled to review Partner's operation from time to
time and, upon reasonable notice to Partner, conduct periodic quality reviews of
Partner's operation. Partner shall comply with all SilverStream quality
standards established from time to time by SilverStream.
6. INDEPENDENT CONTRACTORS. Partner and SilverStream are independent contractors
and are not agents or representatives of each other. Neither party has the right
to bind the other party and shall not misstate or misrepresent its relationship
with the other party. SilverStream may identify Partner as a "Business Partner"
in SilverStream advertising and marketing materials. SilverStream and Partner
will contract separately and independently of each other with their respective
customers. Each party will be solely responsible for and liable to its customers
for its own products and services.
7. TERMINATION; REMEDIES.
7.1 Termination.
-----------
(a) By Either Party. After the Initial Term, this Agreement may be
terminated by either party, without cause, upon ninety (90) days' prior written
notice to the other party.
(b) By Either Party upon Default. In addition to any other rights or
remedies which either party may have under this Agreement or at law or in
equity, each party (except in the case of (v) below) shall have the right, at
such party's sole option, to terminate this Agreement immediately: (i) if the
other party fails to pay any fees or charges or any other payments required
under this Agreement when due and payable; or (ii) if the other party fails to
perform or observe any other covenant, condition or agreement to be performed or
observed by it under this Agreement, and such failure or breach shall continue
unremedied for a period of thirty (30) days after the other party is notified in
writing by such party of such failure or breach; or (iii) if the other party
becomes insolvent, dissolves, liquidates, terminates its existence or assigns
its assets for the benefit of its creditors, or upon the institution of a
bankruptcy or reorganization proceeding by the other party; or (iv) if a
custodian or receiver is appointed for the other party or any of its property or
upon the institution of a bankruptcy or reorganization proceeding filed against
the other party, and such appointment or proceeding is not terminated or
dismissed within thirty (30) days; or (v) in the case of SilverStream only, upon
any assignment or attempted assignment by Partner in violation of Section 12
hereof.
(c) By Partner upon Change in Program Benefits or Requirements. Partner may
terminate this Agreement by giving thirty (30) days' prior written notice to
SilverStream if SilverStream has changed the Program Benefits or Program
Requirements pursuant to Section 1 and such changes are adverse to Partner.
7.2 Remedies. If either party terminates this Agreement under Section 7.1(b), in
addition to any other rights and remedies such party may have, the breaching
party shall pay all costs and expenses incurred by the non-breaching party in
the enforcement or preservation of such party's rights or remedies under this
Agreement, including reasonable attorney's fees. Termination or expiration shall
not release either party from its obligation to pay any fees accruing prior to
the date of the termination or expiration. Upon the termination of this
Agreement for any reason, Partner shall (i) cease immediately from acting as a
Partner of SilverStream, (ii) pay to SilverStream, in full within 30 days of
such termination, all amounts owed to SilverStream and (iii) cooperate with
SilverStream in completing all outstanding obligations to customers 8.
CONFIDENTIAL INFORMATION. Neither party will disclose or use any business and/or
technical information of the other designated orally or in writing as
"Confidential" or "Proprietary" or otherwise provided by the other party whether
or not marked as such ("Confidential Information") without the prior written
consent of the other party. Such restrictions do not extend to any item of
information which (a) is now or later becomes available in the public domain
without the fault of the receiving party; (b) is disclosed or made available to
the receiving party by a third party without restrictions and without breach of
any relationship of confidentiality; (c) is independently developed by the
receiving party without access to the disclosing party's Confidential
Information, (d) is known to the recipient at the time of disclosure, or (e) is
produced in compliance with applicable law or court order, provided that the
disclosing party is given reasonable notice of such law or order and an
opportunity to attempt to preclude or limit such production. Upon termination or
expiration of this Agreement, each party shall immediately return all copies of
Confidential Information received from the other party.
9. DISCLAIMER OF WARRANTY. Except as expressly provided herein, NO EXPRESS OR
IMPLIED WARRANTY OR CONDITION IS MADE WITH RESPECT TO ANY PRODUCTS OR SERVICES
PROVIDED HEREUNDER BY SILVERSTREAM OR ITS SUBSIDIARIES, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS
FOR A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY. The aggregate liability to SilverStream and its
subsidiaries, if any, for any losses or damages arising out of or in connection
with this Agreement, whether the claim is in contract, tort or otherwise, shall
not exceed the amount paid by Partner to SilverStream under this Agreement for
the affected products or services. UNDER NO CIRCUMSTANCES SHALL SILVERSTREAM,
ITS SUBSIDIARIES OR ITS LICENSORS BE LIABLE FOR SPECIAL, INDIRECT, EXEMPLARY,
INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LEGAL
FEES, LOSS OF PROFITS, LOSS OR INACCURACY OF DATA OR LOSS RESULTING FROM
BUSINESS DISRUPTION, EVEN IF SILVERSTREAM HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. IN NO EVENT WILL SILVERSTREAM BE LIABLE TO PARTNER'S CUSTOMERS OR
OTHER THIRD PARTIES FOR ANY DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES
CAUSED BY PARTNER'S FAILURE TO PERFORM COVENANTS AND RESPONSIBILITIES. PARTNER
SHALL INDEMNIFY SILVERSTREAM AGAINST ALL SUCH CLAIMS ASSERTED BY ITS CUSTOMERS
OR OTHER THIRD PARTIES AGAINST SILVERSTREAM.
11. INDEMNIFICATION. Partner indemnifies, defends and holds harmless
SilverStream, its affiliates, directors, employees and agents from all third
party claims, including court costs and reasonable fees of attorneys and expert
witnesses, arising in connection with its activities or inactivity hereunder
unless such liability is caused by the gross negligence or willful misconduct of
SilverStream. SilverStream indemnifies, defends and holds harmless Partner, its
affiliates, directors, employees and agents from all third party claims,
including court costs and reasonable fees of attorneys and expert witnesses,
arising in connection with its activities or inactivity hereunder unless such
liability is caused by the gross negligence or willful misconduct of Partner.
12. ASSIGNMENT. The rights granted to Partner under this Agreement are personal
in character. Neither this Agreement nor any rights granted hereby may be
assigned by Partner voluntarily or by operation of law without SilverStream's
prior written consent and any such attempted assignment shall be null and void.
For purposes of this Agreement, "assignment" shall be deemed to include the
transfer of all or substantially all of the assets of, or all or a majority of
the voting stock or other equity interest of Partner, or the merger of Partner
with one or more entities. This Agreement shall inure to the benefit of and be
binding upon any successor or assign of SilverStream.
13. NOTICES. All notices, requests, demands and other communications hereunder
shall be in writing to the address set forth above (and if to SilverStream, to
the attention of the Legal Department) or to such other address as SilverStream
or Partner may designate by written notice to each other. Any such notices,
requests, demands or other communications shall be deemed to have been duly
given (a) if delivered personally, upon receipt; (b) if mailed, three (3)
business days after sent by registered or certified mail, return receipt
requested, postage prepaid; (c) if by Federal Express or other reputable
overnight courier service, one (1) business day after delivery to such courier
service or (d) if by facsimile or e-mail transmission, upon receipt. 14.
GOVERNING LAW; JURISDICTION. This Agreement shall be governed by, and construed
in accordance with, the laws of The Commonwealth of Massachusetts without regard
to its conflict of laws rules or the United Nations Convention on the
International Sale of Goods. Partner submits to the exclusive jurisdiction of
The Commonwealth of Massachusetts and the state and federal courts located
within Suffolk or Middlesex County within The Commonwealth of Massachusetts.
Service of process commencing any suit relating to this Agreement in such courts
may be made on either party in the manner specified in Section 14 hereof for
notice. Anything contained in this Agreement to the contrary notwithstanding,
either party shall have the right to institute judicial proceedings against the
other or anyone acting by, through or under the other, in order to enforce the
instituting party's rights hereunder through reformation of contract, specific
performance, injunction or similar equitable relief. 15. GENERAL. This Agreement
(including any Schedules, Exhibits, Annexes and Addenda attached hereto or
subsequently executed by both parties and referencing this Agreement) and any
documents explicitly referred to herein or therein, constitute the entire
agreement between the parties, supersede any and all previous agreements
authorizing Partner hereunder, and no representation, condition, understanding
or agreement of any kind, oral or written, shall be binding upon the parties
unless incorporated herein. This Agreement may not be modified or amended, nor
will the rights of either party be deemed waived, except by an agreement in
writing signed by authorized representatives of Partner and SilverStream. If any
provision of this Agreement is held to be unenforceable, the parties shall
substitute for the affected provision an enforceable provision which
approximates the intent and economic effect of the provision. In the event that
either party fails to perform any of its obligations under this Agreement due to
any act of God, fire, casualty, flood, war, strike, lock out, failure of public
utilities, injunction or any act, exercise, intervention of governmental
authority, epidemic, insurrection, or any other cause beyond the reasonable
control of the party invoking this provision, then, except for Partner's
obligation to make payments to SilverStream hereunder, the affected party's
performance shall be excused and the time for performance shall be extended for
the period of delay or inability to perform due to such occurrence. The parties
agree to comply with all U.S. state and federal laws, regulations or orders
pertaining to the fulfillment of this Agreement including but not limited to
export control laws, anti-boycott laws, and the Foreign Corrupt Practices Act,
which prohibits certain payments to parties who are not Partner. No delay or
omission on the part of either party to this Agreement in requiring performance
by the other party or in exercising any right hereunder shall operate as a
waiver of any provision hereof or of any right or rights hereunder; and the
waiver, omission or delay in requiring performance or exercising any right
hereunder on any one occasion shall not be construed as a bar to or waiver of
such performance or right, or of any right or remedy under this Agreement, on
any future occasion. This Agreement may be executed in counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same instrument. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa. The word "including" is not a word of limitation and means "including
without limitation". The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement. Sections 3, 4, 5, 7.2, 8, 9, 10, 11,
13, 14 and 15 of this Agreement shall survive any expiration or termination of
this Agreement.
The parties hereto have executed this Agreement as of the Effective Date.
Partner: ____________________________ SILVERSTREAM SOFTWARE, INC.
By: ________________________________ By: ______________________________
Name: _____________________________ Name: ____________________________
Title: ______________________________ Title: ___________________________
Date: ______________________________ Date: ____________________________
EXHIBIT A
TO BUSINESS PARTNER AGREEMENT
(VAR PARTNER)
1. APPOINTMENT. SilverStream appoints Partner as a non-exclusive member of
the SilverStream VAR Partner Program.
2. GRANT OF LICENSES.
2.1 Subject to the terms and conditions of the Agreement, SilverStream hereby
grants to Partner, and Partner hereby accepts, the license pursuant to the
Software License Agreement attached hereto as Annex A for the SilverStream
software products (the "Products"), as designated in Annex A. To the extent
permitted herein, the distribution of any Product by Partner shall be subject to
the terms and conditions of SilverStream's shrink-wrap sublicense agreements
under which each sublicensee agrees, among other things: (a) to operate and
process the Product for its own business purposes only, without the right to
further sublicense; (b) not to copy or reproduce the Product, in whole or in
part, except as permitted in writing; (c) not to modify, adapt, translate,
decompile, disassemble or reverse engineer (except to the extent SilverStream is
required by applicable law to allow you to reverse engineer the software) the
Product in any manner; and (d) that the sublicense agreement inures to the
benefit of SilverStream, and that SilverStream may directly enforce the terms of
the sublicense agreement in order to protect its interest in the Products.
2.2 Neither Partner nor any persons or entities who directly or indirectly
purchase or license Products from, or who have the Products marketed to them by,
Partner in accordance with this Agreement ("Customers") shall have any right to
merge or embed the Products into any other computer program or work or create
derivative works of the Products.
2.3 Title to and ownership of the Products, including all patents, copyrights
and property rights applicable thereto, shall at all times remain solely and
exclusively with SilverStream or its licensors, and neither Partner nor any
Customer shall take any action inconsistent with such title and ownership. Upon
termination of the Agreement, Partner shall abstain from making further
distribution of Products.
2.4 SilverStream may, at its option, make available to Partner certain software,
media and/or related documentation for products or versions of products not
generally commercially available ("Pre-released Software). Partner agrees to use
Pre-released Software for testing and evaluation purposes only, and to treat
Pre-released Software as Confidential Information and trade secrets subject to
the provisions of this Agreement. Partner agrees to abide by the terms of the
shrink-wrap license associated with such Pre-released Software.
3. PRICES, PAYMENT AND AUDIT.
3.1 Partner agrees to pay the prices for each Product ordered hereunder as set
forth under Program Benefits. Such prices shall equal SilverStream's suggested
MSRP ("Base Price") for Products ordered, less the applicable discount (the
"Discount"), as set forth under Program Benefits. All such prices are F.O.B.
SilverStream's point of shipment.
3.2 SilverStream in its sole discretion, shall have the right from time to time,
to change the Base Prices and Discounts and/or add or delete products to or from
the Price List by giving thirty (30) days' prior written notice to Partner.
Orders accepted by SilverStream prior to the effective date of any such change
and scheduled for delivery within 30 days following receipt by SilverStream
shall be processed at the lower of (i) the Base Prices and/or Partner Prices in
effect on the date of acceptance of the order or (ii) the Base Prices and/or
Partner Prices in effect on the scheduled shipment date.
3.3 The payment terms for Product ordered shall be net thirty (30) days and if
Partner fails to pay any amounts when due, Partner shall pay SilverStream a late
payment charge equal to 1.5% per month or if lesser the maximum amount permitted
by law. SilverStream reserves the right to require full or partial payment in
advance, or to revoke any credit previously extended, if, in SilverStream's
judgment, Partner's financial condition does not warrant proceeding on the terms
specified.
3.4 SilverStream shall have the right, subject to reasonable advance notice, to
have an independent auditor acceptable to Partner (which acceptance shall not be
unreasonably withheld or delayed) inspect such books and records of Partner, at
Partner's principal place of business, as are necessary to verify the reports
provided by Partner to SilverStream. Any such audit shall be at the expense of
SilverStream, unless such audit discloses an underpayment by Partner in excess
of five percent (5%) in any three-month period, in which case Partner shall
reimburse SilverStream for such expenses. Any underpayment by Partner shall be
promptly paid to SilverStream together with interest as provided in Section 5.3
hereof.
4. PURCHASE ORDERS; SHIPMENT; DELIVERY; TITLE. Partner shall order Products from
SilverStream by submitting a written purchase order identifying the quantity and
Products ordered, prices, ship to location, requested delivery date(s) and any
export/import and shipping information required to enable SilverStream to fill
the order. All purchase orders for Products are subject to acceptance by
SilverStream. All shipping charges and insurance costs shall be the
responsibility of Partner. Unless otherwise agreed, SilverStream will select the
common carrier on behalf of Partner, but such carrier shall not be construed as
SilverStream's agent. Risk of loss shall pass to Partner upon delivery to the
common carrier. Partner acknowledges that it is responsible for credit and cash
collection risks with its customers. Upon the occurrence of a default by
Partner, SilverStream, in its sole discretion, shall have the right to cancel
any or all unfilled orders for Products submitted by Partner. Purchase orders
shall be binding upon SilverStream only if consistent with this Agreement and
Schedules and Exhibits hereto and with respect to: the designated services
ordered and fees therefor; payment terms; site for performance of services; and
delivery dates set forth on the face side of, or a special attachment to, the
purchase order. Pre-printed or other printed terms on or attached to any such
purchase order shall be void and of no effect.
5. OWNERSHIP OF PRODUCTS. SilverStream software products ("Products") are owned
by SilverStream or its licensors and are protected by copyright law, trade
secret laws and international conventions. All rights in and to patents,
copyrights, trademarks and trade secrets in the Products are and shall remain
with SilverStream and its licensors. No title to, or ownership of, the Products
are transferred to Partner or any end-user. Partner shall not make any
representations concerning the Products that are inconsistent with
SilverStream's marketing materials and advertising.
6. INFRINGEMENT INDEMNIFICATION BY SILVERSTREAM.
6.1 If notified promptly in writing of any action brought against Partner based
on a claim that the Products infringe any valid United States patent or
copyright, SilverStream shall defend such action at its expense and pay all
costs and damages finally awarded in such action or settlement which are
attributable to such claim. SilverStream shall have sole control of the defense
of any such action and all negotiations for its settlement or compromise.
Partner shall cooperate fully with SilverStream in the defense, settlement or
compromise of any such action. In the event that a final injunction is obtained
against Partner's use of the Product by reason of infringement of a valid
patent, copyright, trade secret or other intellectual property right, or if in
the opinion of SilverStream the Product is likely to become the subject of a
successful claim of such infringement, SilverStream may, at its option and
expense, (a) procure for Partner and its Customers the right to continue using
the Product, (b) replace or modify the Product so that it becomes non-infringing
so long as its functionality is essentially unchanged, or (c) if neither (a) and
(b) are reasonably available to SilverStream, terminate the license for the
Product.
6.2 Notwithstanding the foregoing, SilverStream shall have no liability to
Partner to the extent that any infringement or claim thereof is based upon (a)
use of any Product in combination with equipment or software not supplied by
SilverStream where the Product would not itself be infringing, (b) compliance
with designs, specifications or instructions of Partner or any of its Customers,
(c) use of any Product in an application or environment for which it was not
designed or contemplated hereunder, (d) modifications of the Products by anyone
other than SilverStream, or (e) any claims of infringement of any patent,
copyright or trade secret in which Partner or any affiliate of Partner has an
interest or license.
6.3 Partner shall not bring any suit or action against SilverStream for any
reason whatsoever more than one year after the related cause of action has
occurred.
6.4 THE FOREGOING INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY OF
SILVERSTREAM WITH RESPECT TO INFRINGEMENT OR ALLEGED INFRINGEMENT OF PATENTS,
COPYRIGHTS, TRADEMARKS, TRADE SECRETS AND OTHER INTELLECTUAL PROPERTY OR
PROPRIETARY RIGHTS BY THE PRODUCTS.
7. INFRINGEMENT, INDEMNIFICATION BY PARTNER. Partner shall indemnify, defend and
hold harmless SilverStream against all claims, liabilities, damages, expenses,
judgments and losses (including reasonable attorneys' fees) arising from (a)
infringement or alleged infringement of any patent, copyright, trade secret,
trademark or other intellectual property or proprietary right as a result of
compliance by SilverStream with the designs, specifications or instructions of
Partner or any of its Customers, (b) Partner's breach of any of its obligations
hereunder, and (c) Partner's misuse of the Products.
Accepted and Agreed to as of the Effective Date.
Partner: ____________________________ SILVERSTREAM SOFTWARE, INC.
By: ________________________________ By: ________________________________
Name: _____________________________ Name: ______________________________
Title: ______________________________ Title: _____________________________
Date: ______________________________ Date: ______________________________
ANNEX A
TO
EXHIBIT A
TO
BUSINEES PARTNER AGREEMENT
(VAR PARTNER)
SILVERSTREAM SOFTWARE LICENSE AGREEMENT
(THIS IS A LICENSE AND NOT A SALE)
IMPORTANT - READ CAREFULLY BEFORE INSTALLING SOFTWARE
YOU MAY USE THE ENCLOSED SOFTWARE ONLY IN ACCORDANCE WITH THIS LICENSE AGREEMENT
("AGREEMENT") (UNLESS YOU HAVE A SIGNED LICENSE AGREEMENT WITH SILVERSTREAM OR
ONE OF ITS SUBSIDIARIES COVERING THIS SOFTWARE). USE OF THIS SOFTWARE IS
EXPRESSLY CONDITIONED ON YOUR AGREEING TO THIS AGREEMENT. YOU INDICATE YOUR
ACCEPTANCE OF THIS AGREEMENT BY CLICKING ON THE "YES" BUTTON DURING INSTALLATION
OF THE SOFTWARE. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT INSTALL THE
SOFTWARE AND PROMPTLY RETURN THE SOFTWARE (AND ALL OTHER PRODUCT CONTENTS
INCLUDING DOCUMENTATION) WITH YOUR RECEIPT OR OTHER PROOF OF PURCHASE TO
SILVERSTREAM FOR A FULL REFUND. If you should have any difficulty in obtaining
such refund, or if you have any questions concerning this Agreement, please
write to the attention of the Legal & Contracts Dept at the United States
headquarters of SilverStream Software, Inc., which can be found at
SilverStream's website at xxx.xxxxxxxxxxxx.xxx.
IF YOU PURCHASED THE SOFTWARE FROM AN AUTHORIZED RESELLER OF SILVERSTREAM, YOU
UNDERSTAND THAT SUCH RESELLER IS NOT SILVERSTREAM'S AGENT AND IS NOT AUTHORIZED
TO MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES, STATUTORY OR OTHERWISE,
ON SILVERSTREAM'S BEHALF NOR TO VARY ANY OF THE TERMS OR CONDITIONS OF THIS
AGREEMENT.
1. LICENSE TERMS. SilverStream grants you a non-exclusive and non-transferable
(except as otherwise expressly stated in this Agreement) right and license to
use the object code version of the Software in accordance with the applicable
license detailed below that you have purchased. All rights not specifically
granted to you in this Agreement are retained by SilverStream and its licensors.
LICENSE CONFIGURATIONS CHART
=====================================================================================================================
DEVELOPMENT SOFTWARE LICENSE CONFIGURATIONS
=====================================================================================================================
=====================================================================================================================
SILVERSTREAM DEVELOPER EDITION (SDE) Available in "1 developer" or "5 developer"
configurations.
=====================================================================================================================
DEPLOYMENT SOFTWARE LICENSE CONFIGURATIONS
=====================================================================================================================
=====================================================================================================================
SILVERSTREAM WORKGROUP EDITION (SWE) Available in "concurrent user" configurations of 5, 10 or 25.
=====================================================================================================================
=====================================================================================================================
SILVERSTREAM ENTERPRISE EDITION (SEE) Available in "Per Processor"
configurations of 1, 2, 4, or 6.
=====================================================================================================================
=====================================================================================================================
ENTERPRISE DATA CONNECTORS (EDC) Available in "Per Processor" configurations of 1, 2 or 4; Windows NT
only.
=====================================================================================================================
(A) DEVELOPMENT USE LICENSES. Licensed solely for your internal software
application development use for the number of developers within your
organization commensurate with the type of license purchased as designated in
the chart above. You may use the media on which the 5-pack SDE resides to copy
the SDE onto those computing devices used by licensed developers.
(B) DEPLOYMENT USE LICENSES. Licensed solely for your software application
deployment use for the number of users commensurate with the type of license
purchased as designated in the above chart. The SEE and EDC may be accessed by
an unlimited number of users per Processor. Though deployment Software does not
include development Software tools or applicable documentation, you may use
deployment Software for your application development testing purposes.
2. FEES AND PAYMENT. All fees resulting from this Agreement are due and payable
within thirty (30) days after your receipt of the invoice if related to a
product or Support Service(s) (as defined below) acquired directly from
SilverStream; otherwise such fees are due and payable in accordance with the
applicable authorized reseller's policies. You shall pay all applicable shipping
charges, and sales, use, value added, personal property, consumption or similar
taxes, tariffs or governmental charges, exclusive of SilverStream's or its
reseller's net income and corporate franchise taxes.
3. SUPPORT SERVICES. You may purchase technical telephone support, update
assurance and/or training services in support of the Software ("Support
Service(s)") in accordance with then-current plans for such Support Service(s),
current versions of which can be found within SilverStream's website at
"xxx.xxxxxxxxxxxx.xxx".
4. RESTRICTIONS AND OTHER CONDITIONS.
(A) You may not copy the Software except as expressly allowed under Sections
1(A) and 4(e) of this Agreement. (B) You may not modify, enhance, reverse
engineer, decompile, disassemble, supplement, create derivative work from,
adapt, translate or otherwise reduce the Software to human readable form (except
as specifically permitted in the Documentation); except, however, if you are
located in the European Economic Area and require access to the source code of
the Software in order to achieve interoperability of the Software with other
software, then you will inform SilverStream accordingly and SilverStream can
then decide either (i) to perform the work in order to achieve such
interoperability and charge its then-standard rates for such work to you or (ii)
to permit you to reverse engineer parts of the Software in order to obtain such
source code, but only to the extent necessary to achieve such interoperability.
(C) You may not rent or lease the Software nor allow use of the Software for
service bureau, timesharing or any other form of shared use.
(D) Except as otherwise expressly permitted in this Agreement, you may not cause
or permit the disclosure, copying, renting, licensing, sublicensing, leasing,
dissemination or other distribution of the Software or its Documentation by any
means or in any form to any third party including, without limitation, any form
of distributor or reseller without a signed agreement with SilverStream granting
such right(s).
(E) You may make one copy of the Software and Documentation solely for archival,
emergency back-up, or disaster recovery purposes; provided, however, that all
copyright and other proprietary notices of SilverStream and its licensors are
reproduced on such copies.
(F) You acknowledge that, although the Software media may contain other software
products, you are hereby licensed to install and use only the Software
designated by the license key provided to you for operation of the Software. (G)
The Software may not be transferred, sold, assigned or otherwise conveyed
(whether by operation of law or otherwise) to another party or outside the
country in which it was originally delivered to you without SilverStream's prior
written consent subject to your compliance with all applicable export and
re-export regulations and restrictions; provided, however, that if you are
located in the European Economic Area, you may transfer your copy of the
Software together with its Documentation on a permanent basis, so long as you
notify SilverStream as to the name and address of the recipient of your copy and
that such recipient agrees in writing to the terms and conditions of this
Agreement. (H) Results of benchmark or other performance tests run on the
Software may not be disclosed to any third party without SilverStream's prior
written consent.
(I) The Software contains software programs written in Java. The Software is not
fault-tolerant and is not designed, manufactured or intended for use or resale
in the on-line control, design, construction, operation or maintenance of any
nuclear facilities, aircraft navigation or communication systems, air traffic
control, direct life support machines, or weapons systems, in which the failure
of the Software could lead directly to death, personal injury, or severe
physical or environmental damage ("High Risk Activities"). SilverStream and its
suppliers specifically disclaim any express or implied warranty of fitness for
High Risk Activities. You acknowledge that you are not licensed to use the
Software for High Risk Activities and you warrant that you will not do so.
(J) Third party software products supplied with the Software are provided to you
subject to such third party's license agreement with SilverStream, the terms of
which may change from time to time. The Sybase Adaptive Server Anywhere database
may only be used as a part of SilverStream's development Software.
(K) Any form of evaluation Software is licensed solely for your evaluation and
trial purposes, and begins upon your installation of the Software and ends
forty-five (45) days thereafter.
GENERAL TERMS AND CONDITIONS
5. COPYRIGHT AND OWNERSHIP. Title to the Software and its Documentation, and
patents, copyrights and all other property rights applicable thereto, shall at
all times remain solely and exclusively with SilverStream and its licensors, and
you shall not take any action inconsistent with such title. The Software is
protected by copyright laws and international treaty provisions. You shall not
remove any copyright notices or other proprietary notices from the Software or
its Documentation, and you must reproduce such notices on all copies or extracts
of the Software or its Documentation. You do not acquire any rights of ownership
in the Software.
6. U.S. GOVERNMENT RIGHTS. If the Software or its Documentation is acquired by
or on behalf of the United States Government, the Government agrees that such
Software and Documentation is "commercial computer software" or "commercial
computer software documentation" and that use, modification, duplication and
disclosure of the Software and its Documentation by the U.S. Government is
subject to restrictions set forth in this Agreement or in a written agreement to
the contrary specifying the Government's right to use the Software and its
Documentation, pursuant to FAR ss. 12.212(a) and/or DFARS ss. 227.7202-1(a), as
applicable. SilverStream reserves all unpublished rights under U.S. copyright
laws.
7. TERM OF LICENSE. Either party may terminate this Agreement if the other party
breaches any of its obligations hereunder and fails to cure such breach within
thirty (30) days after written notice. Upon termination, you shall cease using
the Software and shall return to SilverStream all copies of the Software and its
Documentation in any form.
8. LIMITED WARRANTY. For the period of thirty (30) days from the date of your
receipt of the Software, SilverStream warrants that the Software, when properly
used, will operate in all material respects in conformity with its
Documentation, and the Software media shall be free of defects. SilverStream
warrants that Software telephone support and training services ("Related
Service(s)") will be performed by qualified personnel in a professional manner.
In the event of non-conforming Software or Related Service(s), or if the media
is defective, your sole remedy and SilverStream's exclusive liability shall be,
as applicable and at SilverStream's option, replacement of the affected Software
or media, or re-performance of the Related Service(s) at no additional charge,
or a refund of the fees paid for the affected Software or Related Service(s).
Some jurisdictions do not allow the exclusion or limitation of relief,
incidental or consequential damages, so the above limitation or exclusion may
not apply to you. EVALUATION SOFTWARE AND ANY THIRD PARTY SOFTWARE ARE PROVIDED
TO YOU "AS IS" WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE.
SILVERSTREAM DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABLE QUALITY, NONINFRINGEMENT, AND FITNESS FOR A
PARTICULAR PURPOSE, AND WHETHER ARISING BY STATUTE OR IN LAW OR AS A RESULT OF A
COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO THE SOFTWARE, ITS
DOCUMENTATION, SUPPORT OR OTHER SERVICES RELATED TO THE SOFTWARE. NO WARRANTY IS
MADE REGARDING THE RESULTS OF SOFTWARE OR RELATED SERVICES OR THAT ALL ERRORS IN
THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE'S FUNCTIONALITY WILL MEET
YOUR REQUIREMENTS. YOU ACKNOWLEDGE YOUR RESPONSIBILITY TO (I) REGULARLY BACK UP
DATA MAINTAINED ON ANY COMPUTER SYSTEM USING THE SOFTWARE AND (II) ADEQUATELY
TEST PRIOR TO DEPLOYMENT EACH PRODUCTION VERSION OF THE SOFTWARE IN A
CONFIGURATION WHICH REASONABLY SIMULATES YOUR PLANNED DEPLOYMENT OR PRODUCTION
ENVIRONMENT. This limited warranty gives you specific legal rights. You may have
other rights that vary among jurisdictions. Some jurisdictions do not allow the
exclusion of implied conditions or warranties, statutory or otherwise, so the
above exclusions may not apply to you.
9. LIMITATIONS ON LIABILITY. SILVERSTREAM'S LICENSORS SHALL NOT BE LIABLE FOR
DIRECT DAMAGES AND SILVERSTREAM SHALL NOT BE LIABLE FOR DIRECT DAMAGES ARISING
FROM ANY SOFTWARE PRODUCT OR RELATED SERVICE BEYOND THE AMOUNT YOU PAID FOR SUCH
SOFTWARE PRODUCT OR RELATED SERVICE. NEITHER SILVERSTREAM, ITS SUBSIDIARIES NOR
ANY OF ITS LICENSORS SHALL BE LIABLE FOR ANY LOSS OR INACCURACY OF DATA, LOSS OF
PROFITS OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES,
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER
SILVERSTREAM NOR ANY OF ITS SUBSIDIARIES TOTAL LIABILITY, IF ANY, ARISING OUT OF
THIS AGREEMENT OR YOUR USE OF THE SOFTWARE OR RELATED SERVICES SHALL EXCEED THE
FEES PAID BY YOU FOR THE AFFECTED SOFTWARE OR RELATED SERVICE(S) GIVING RISE TO
THE CLAIM. THE FOREGOING RESTRICTIONS, DISCLAIMERS AND LIMITATIONS SHALL REMAIN
IN FORCE EVEN IN THE EVENT OF A FUNDAMENTAL BREACH BY SILVERSTREAM OR A BREACH
BY SILVERSTREAM OF A CONDITION OR FUNDAMENTAL TERM HEREUNDER. Some jurisdictions
do not allow the exclusion or limitation of indirect, special, incidental,
consequential or exemplary damages or the limitation of liability to specified
amounts, so the above limitations or exclusions may not apply to you.
10. GOVERNING LAW; COMPLETE AGREEMENT; TRANSLATION. This Agreement constitutes
the complete agreement between the parties with respect to the Software, its
Documentation and services hereunder and is governed by the laws of the
Commonwealth of Massachusetts excluding (i) its conflict of law provisions, (ii)
the United Nations Convention on Contracts for the International Sale of Goods,
(iii) the 1974 Convention on the Limitation Period in the International Sale of
Goods (the "1974 Convention"), and (iv) the Vienna Protocol of 11 April 1980
amending the 1974 Convention. The terms of this Agreement supersede the terms of
any purchase order or other document issued or signed by you to authorize your
purchase of the license of the Software or related services. If any provision of
this Agreement is held to be unenforceable, such provision shall be limited,
modified or severed as necessary to eliminate its unenforceability, and all
other provisions shall remain unaffected. The failure or delay of either party
to exercise any of its rights shall not be deemed a waiver of such rights and no
waiver of any breach of this Agreement shall constitute a waiver of any other
breach. The parties hereto have requested that this Agreement and all documents
contemplated hereby be drawn up in English.
The parties agree that the federal and state courts of the Commonwealth of
Massachusetts shall be the exclusive forum for resolving all disputes that arise
from or in connection with this Agreement or the interpretation or termination
thereof and you hereby submit to the jurisdiction of such courts for such
purposes; provided, however, that either party shall have the right to institute
judicial proceedings against the other party or anyone acting by, through or
under the other party, in order to enforce such party's rights hereunder through
reformation of contract, specific performance, injunction or similar equitable
relief.
11. DEFINITIONS. "Documentation" means the publications prepared and delivered
to you by SilverStream that accompanies the Software, such as reference, user,
installation, systems administrator and technical guides. "Processor" means each
central processing unit (CPU) designated for use on a specific computing device.
"Software" means those items of software, in object code form only, proprietary
to SilverStream and/or its suppliers that you have ordered from SilverStream in
the accompanying package or your accepted order(s) and supplied together with
this Agreement and any patch, update, upgrade, modification or other enhancement
thereto provided to you by SilverStream.
EXHIBIT A
TO BUSINESS PARTNER AGREEMENT
(CONSULTING PARTNER)
1. APPOINTMENT. SilverStream appoints Partner as a non-exclusive member of
the SilverStream Consulting Partner Program to provide consulting services
relating to the SilverStream software products (the "Products").
2. GRANT OF LICENSES. Subject to the terms and conditions of this
Agreement, SilverStream hereby grants to the Partner, and the Partner hereby
accepts a non-exclusive and non-transferable license to:
2.1 use SilverStream documentation ("Documentation") in connection with
providing consulting services; and
2.2 utilize applicable Products only in connection with the provision of
consulting services. This Agreement does not provide Partner with any right to
sell Products to its customers or any third party.
This Agreement does not provide Partner with any right to sell Products to its
customers or any third party. The Products are provided to Partner solely for
the purpose of providing supervised demonstrations of the Products to
prospective customers. The Products may not be transferred, distributed or
sublicensed to third parties or used for development or production purposes.
Partner may, for such purpose, make a reasonable number of demonstration copies
of the Products.
3. OBLIGATIONS OF PARTNER.
3.1 Partner shall arrange for one or more of its employees to complete a
designated training course offered by SilverStream or a SilverStream Training
Partner within sixty (60) days after entering into this Agreement. Upon
completion of the training course, the employee shall become certified by
submitting a certification application and passing a certification examination.
In order to retain certification status, certified personnel must be
re-certified based upon new versions of Products. If any of the Partner's
employees who then have SilverStream certification status shall no longer be
employed by Partner, SilverStream shall have the right to require Partner to
arrange for another of its employees to complete a designated training course
offered by SilverStream or another Training Partner within sixty (60) days after
the termination of such certified employee and to require such employee to take
an examination to become so certified.
3.2 Partner shall provide, at its own expense, appropriate computer equipment
for the consulting services.
3.3 Partner shall not make any representations concerning the Products which are
inconsistent with SilverStream's marketing materials and advertising.
3.4 Partner acknowledges that SilverStream retains all title, copyright and
other proprietary rights in and to the SilverStream Products and Documentation
including any and all copies, modifications and translations thereof and
derivative works based thereon.
3.5 Partner shall not make copies of any of the SilverStream Products and
Documentation without the written permission of SilverStream. Partner shall not
remove any copyright or proprietary rights notice included in or on any of the
SilverStream Products and Documentation, and shall reproduce all such notices in
or on all copies made by Partner.
3.6 Partner will not use the Products and Documentation, any portion thereof, or
any works derived therefrom for any purpose other than providing consulting
services as authorized hereunder.
4. PURCHASE ORDERS. Purchase orders shall be binding upon SilverStream only if
consistent with this Agreement and Schedules and Exhibits hereto and with
respect to: the designated services ordered and fees therefor; payment terms;
site for performance of services; and delivery dates set forth on the face side
of, or a special attachment to, the purchase order. Pre-printed or other printed
terms on or attached to any such purchase order shall be void and of no effect.
Accepted and Agreed to as of the Effective Date.
Partner: ____________________________ SILVERSTREAM SOFTWARE, INC.
By: _______________________________ By: _________________________________
Name: _____________________________ Name: _______________________________
Title: ____________________________ Title: ______________________________
Date: _____________________________ Date: _______________________________
EXHIBIT A
TO BUSINESS PARTNER AGREEMENT
(INTEGRATOR PARTNER)
1. APPOINTMENT. SilverStream appoints Partner as a non-exclusive member of
the SilverStream Integrator Partner Program to provide services relating to the
SilverStream software products (the "Products").
2. GRANT OF LICENSES. Subject to the terms and conditions of this
Agreement, SilverStream hereby grants to the Partner, and the Partner hereby
accepts, a non-exclusive and non-transferable license to:
2.1 use SilverStream documentation ("Documentation") in connection with
providing services; and
2.2 utilize applicable Products only in connection with the provision of
services hereunder.
This Agreement does not provide Partner with any right to sell Products to its
customers or any third party. The Products are provided to Partner solely for
the purpose of providing supervised demonstrations of the Products to
prospective customers. The Products may not be transferred, distributed or
sublicensed to third parties or used for development or production purposes.
Partner may, for such purpose, make a reasonable number of demonstration copies
of the Products.
3. OBLIGATIONS OF PARTNER.
3.1 Partner shall not make any representations concerning the Products that are
inconsistent with SilverStream's marketing materials and advertising.
3.2 Partner acknowledges that SilverStream retains all title, copyright and
other proprietary rights in and to the SilverStream Products and Documentation
including any and all copies, modifications and translations thereof and
derivative works based thereon.
3.3 Partner shall not make copies of any of the SilverStream Products and
Documentation without the written permission of SilverStream. Partner shall not
remove any copyright or proprietary rights notice included in or on any of the
SilverStream Products and Documentation, and shall reproduce all such notices in
or on all copies made by Partner.
3.4 Partner will not use the Products and Documentation, any portion thereof, or
any works derived therefrom for any purpose other than providing services as
authorized hereunder.
4. PURCHASE ORDERS. Purchase orders shall be binding upon SilverStream only if
consistent with this Agreement and Schedules and Exhibits hereto and with
respect to: the designated services ordered and fees therefor; payment terms;
site for performance of services; and delivery dates set forth on the face side
of, or a special attachment to, the purchase order. Pre-printed or other printed
terms on or attached to any such purchase order shall be void and of no effect.
Accepted and Agreed to as of the Effective Date.
Partner: ____________________________ SILVERSTREAM SOFTWARE, INC.
By: ________________________________ By: _________________________________
Name: _____________________________ Name: ______________________________
Title: _____________________________ Title: ______________________________
Date: ______________________________ Date: _______________________________
