Exhibit 10.11
ASP License Agreement
This ASP License Agreement ("Agreement") is made by and between cMeRun
Corp. ("cMeRun"), a Delaware corporation having a principal place of business at
Xxx Xxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("CMeRun") and Winstruct Inc. an
Independent Software Vendor which is a Washington corporation having a principal
place of business at 000 Xxxxxxxxxx Xxx. Xxxxx 000, Xxxxxx, XX 00000 ("ISV").
OVERVIEW
The purpose of this Agreement is to allow cMeRun to host ISV's Software
for the purpose of cMeRun or its resellers ("ASP's") offering an application
service based on the ISV's Software. The parties intend that cMeRun will
implement a solution to offer ISV's applications to end-users. cMeRun will
partner with Resellers to offer an ASP service to the Reseller's subscribers.
cMeRun will host, manage, and run the Software from a remote server facility.
The End User will not download or install the Software to or on his/her device,
but instead will access the ASP Service via an Internet browser with the
Software remaining resident on the cMeRun server.
1. Definitions:
1.1 "End User" means a third party, which is not an affiliate,
subsidiary, or associated entity of cMeRun, that has entered into an
agreement with, or has made any payment to, an ASP by reason of
which such person or entity has become entitled to use the ASP
Service.
1.2 "ASP Service" means the commercial service which is comprised of the
Software, as hosted by CMeRun and made available to Resellers and
End-Users.
1.3 "Software" means the object code version, in any form or format, of
those ISV software products listed in Schedule A attached hereto and
incorporated herein by reference ("Schedule A").
1.4 "Reseller" means any third party with whom cMeRun contracts to
authorize such third party to offer the ASP Service to End Users.
1.5 "Effective Date" means the date this agreement is signed by both
parties to this Agreement.
2. Grant of License
2.1. ISV hereby grants to cMeRun, subject to the terms and conditions in
this Agreement, a world-wide, non-exclusive, non-transferable,
royalty-free, and fully paid-up license (and any other permissions
necessary) to (i) store the Software in any number of computers or
servers under cMeRun's control and to copy, manipulate or in any
other way use the Software as needed for the purposes of testing and
developing the ASP
Service; (ii) contract with Resellers to allow such Resellers to
offer the ASP Service to End Users; (iii) and market and demonstrate
the Software as part of the ASP Service, and to permit End-Users to
access and use the ASP Service as contemplated hereunder
("Application License").
2.2. cMeRun shall have the sole discretion whether and how to contract
with Resellers as defined in Section 1.4.
2.3. Upon written mutual agreement, the parties may from time to time
make modifications to Schedule A.
3. License Fees
3.1. Reporting and Payment. cMeRun will submit to ISV a usage report in
XML format providing a summary accounting of all End Users to whom
cMeRun granted access to the ASP Service during the previous month
("Usage Report"). The Usage Report will be provided to ISV in the
format identified in Schedule B attached hereto and incorporated
here in by reference ("Schedule B"). The delivery of the Usage
Report and payment of Licensing Fees as defined in Section 3.2 below
will be due to ISV by the 45th day following the month for which
usage is being reported.
3.2. Pricing. cMeRun may determine the fees and charges it imposes on End
Users or Resellers at its own discretion. cMeRun agrees to pay, in
US Dollars, Software licensing fees to the ISV as set forth in
Schedule A ("Licensing Fees").
4. Support
4.1. ISV agrees to provide cMeRun with third-level technical support for
the Software. Both parties agree to provide one key technical
contact for conducting discussions related to technical issues with
the Software.
4.2. ASP's and End Users will be entitled to access any of the ISV's
on-line support resources directly in accordance with ISV's standard
policies and procedures as such may be in effect from time to time.
4.3. ISV will provide cMeRun with a link, if available, to any on-line
support available for Software. ASP's shall have the right to
provide links from its service to the ISV's on-line support sites at
no additional charge to such ASP's or the End Users.
5. Intellectual Property
5.1. Except for the Application License and Trademark License, nothing in
this Agreement shall be deemed to convey any rights in the Software
or ISV Marks to cMeRun.
6. Master Copy
6.1. ISV will provide cMeRun with copies of the Software in electronic
format, making it available either for direct download over the
Internet or by providing it to cMeRun on a "Gold Master" CD of the
Software. ISV agrees to update the Software from time to time in
order to maintain in such Software a feature set reasonably
equivalent to the feature set contained in ISV's then-current,
non-hosted version of the Software. ISV will, at no additional
charge to cMeRun, provide cMeRun with such updates, which shall be
governed under the terms of this Agreement as if they were included
in the original version of the Software.
7. Reseller Agreements
7.1. cMeRun will develop a form agreement for use between cMeRun and a
Reseller to govern the provision of the ASP Service to such Reseller
and its End Users (the "Reseller Agreement"). Should cMeRun, in its
sole discretion, determine to provide the ASP Service to a Reseller,
cMeRun shall be solely responsible for presenting the Reseller
Agreement to the Reseller, procuring the Reseller's acceptance of
its terms, and shall be solely responsible for monthly xxxxxxxx and
collection of any fees from the Reseller.
8. Trademarks
8.1. ISV hereby grants cMeRun the rights to use those trademarks ("ISV
Marks") set forth on Schedule C, attached hereto and incorporated
herein by reference ("Schedule C"), in conjunction with the ASP
Service or otherwise in accordance with terms of this Agreement
("Trademark License"). cMeRun shall have the right to assign this
Trademark License to any Resellers upon terms substantially similar
to those in Sections 8.1, 8.3, and 8.4.
8.2. ISV will provide cMeRun with electronic and print copies, as
reasonably requested by cMeRun, of the ISV Marks upon execution of
this Agreement.
8.3. cMeRun agrees not to alter the ISV's trademarks, logos, or copyright
notices or the designs of any of the Software.
8.4. Except for the Trademark License, nothing in this Agreement shall be
deemed to convey any rights in the ISV Marks to cMeRun. cMeRun
acknowledges and agrees that any and all use of the trademarks by
cMeRun hereunder shall inure to the benefit of ISV.
9. Term and Termination
9.1. This Agreement shall commence on the Effective Date identified below
and shall continue in force for an initial term of one (1) year from
the Effective Date. Upon the expiration of this initial term or any
renewal term, this Agreement shall be automatically renew year for
an additional one-year term. Either party may terminate
this Agreement by giving the other party written notice of its
intent to terminate this Agreement at least sixty (60) days prior to
any such renewal.
9.2. Either party shall have the right to terminate this Agreement due to
a material breach by the other that is not cured within thirty (30)
days after receipt of written notice of such breach, such notice to
be sent by registered mail.
9.3. Upon termination of this Agreement, cMeRun shall:
9.3.1 immediately cease making the ASP Service available to
Resellers or End Users, subject only to cMeRun's existing
obligations to any Reseller or End User under an applicable Reseller
Agreement or otherwise. The parties agree that, if any such
obligation requires cMeRun to continue making the ASP Service
available for a period of time beyond termination, the all terms of
this Agreement other than Section 9.1 shall continue in full force
and effect until such time as the last of such obligations ceases to
exist (the "Extension Period").
9.3.2 upon the expiration of the Extension Period, immediately
remove or otherwise destroy all Software provided pursuant to this
Agreement from its servers or tangible media.
9.3.3 upon the expiration of the Extension Period, immediately cease
to use the ISV Marks under the Trademark License.
9.3.4 submit, within thirty (30) days of the expiration of the
Extension Period, a final Usage Report reporting any End User usage
up to the date of such termination or expiration which has not been
previously been reported to ISV.
10. Public Announcements
10.1. The parties agree that all press releases related to this Agreement
or the relationship between the parties shall require the approval
of each party. Written consent shall not be unreasonably withheld or
delayed. Within a reasonable period of time following the effective
date of this Agreement, the parties agree to jointly issue a press
release announcing the relationship identified in this Agreement.
11. Audit Rights
11.1. No more frequently than once during any consecutive twelve-month
period, ISV shall have the right, at ISV's expense and with at least
twenty-five (25) days prior written notice to cMeRun, to have an
independent public accountant mutually acceptable to both parties
audit cMeRun's financial records relating to the cMeRun subscriber
fees
for the preceding year and only for the purpose of verifying the
information contained in the Usage Reports submitted to ISV. In the
event such audit reveals a written accounting to be deficient,
cMeRun shall promptly remit the amount due to ISV. If a deficit is
in excess of ten (10) percent, cMeRun shall reimburse ISV for the
all reasonable costs associated with the audit.
12. Confidentiality
12.1. Confidential Information is that information or know-how identified
as being confidential, or, given the circumstances surrounding
disclosure, should in good faith be treated as confidential. Both
parties agree (i) not to use Confidential Information for any
purpose other than in furtherance of this Agreement,; (ii) not to
disclose, or permit any third party or entity access to,
Confidential Information (or any portion thereof) without prior
written permission of the other party (except such disclosure or
access as is required to perform any obligations under this
Agreement); and (iii) to ensure that any employees or other third
parties who receive access to Confidential Information are advised
of the confidential and proprietary nature thereof and are
prohibited from copying, utilizing or otherwise revealing said
Confidential Information except in furtherance of this Agreement.
Notwithstanding anything herein to the contrary, no obligation or
liability shall accrue under the Agreement for any information that
is (i) available to the public other than by a breach of an
agreement with the disclosing party; (ii) rightfully received from a
third party not in breach of any obligation of confidentiality;
(iii) independently developed by one party without access to the
Confidential Information of the other; (iv) known to the receiving
party at the time of disclosure; or (v) produced in compliance with
applicable law or a court order, upon advise of counsel, provided
that other party is given reasonable notice of such law or order and
an opportunity to attempt to preclude or limit such production.
Without limiting the foregoing, each of the parties agrees to employ
with regard to Confidential Information protective procedures which
are no less restrictive than the strictest procedures used by it to
protect its own confidential and proprietary information.
13. Indemnification
13.1. Indemnification by cMeRun. ISV shall have no liability for, and
cMeRun shall defend, hold harmless and indemnify ISV against, any
claim of intellectual property or trade secret infringement or
misappropriation based on (a) cMeRun's combination of the Software
with a program or data not supplied by ISV, if such claim would have
been avoided had such combination not occurred, or (b) use of the
Software in a manner inconsistent with this Agreement; provided that
cMeRun is notified promptly by ISV in writing of any such claim and
has sole control over its defense or settlement, and ISV provides
reasonable assistance (at cMeRun's expense and reasonable request)
in the defense of the same. Notwithstanding the foregoing, cMeRun
shall not make any settlement which in any way affects the rights or
property of ISV without the prior written consent of ISV.
13.2. Indemnification by ISV. ISV warrants that it is the owner of the
Software and to all enhancements and modifications thereto; that it
has the right and authority to grant the
rights set forth in Section 2 hereof, and that cMeRun's use of the
Software as contemplated by this Agreement will not infringe any
third party's patent, copyright, trade secret, trademark or other
proprietary right. ISV agrees to indemnify, hold harmless and defend
cMeRun from and against any and all damages, costs, and expenses
incurred in connection with a claim which, if true, would constitute
a breach of this warranty by ISV, or is the result of harmful,
malicious, or grossly negligent acts or omissions of the ISV,
provided that ISV is notified promptly by cMeRun in writing of any
claim and has sole control over its defense or settlement and cMeRun
provides reasonable assistance (at ISV's expense and reasonable
request) in the defense of same.
14. Disclaimer of Warranties
14.1. EXCEPT FOR THE WARRANTY IN SECTION 13.2, NEITHER PARTY MAKES ANY
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF
MERCHANTABILITY.
15. Limitation and Exclusion of Liability
15.1. THE MAXIMUM COLLECTIVE LIABILITY OF CMERUN, INCLUDING ITS OFFICERS,
DIRECTORS, EMPLOYEES, AND AGENTS, FOR ANY DAMAGES ARISING HEREUNDER
SHALL BE LIMITED SOLELY TO THE AMOUNT PAID BY cMeRun TO ISV
HEREUNDER DURING THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE
ACCRUAL OF CLAIM OWING RISE TO SUCH DAMAGES.
15.2. The damages recoverable by either party upon a breach of this
Agreement by the other shall be limited to those damages, if any,
that are directly and proximately caused by the breach and that the
non-breaching party was unable to mitigate despite reasonable
efforts to do so. In no event will either party be liable to the
other party for loss of profits, or special, indirect, incidental,
punitive, consequential, or exemplary damages, including but not
limited to damages which may result from business interruption, lost
business revenue or economic loss or any claim by a third party,
including costs or legal expenses, in connection with the supply,
use or performance of the Software or any breach of this Agreement.
The restrictions of this section shall apply without regard to the
nature of the party's claim, the forum in which its claims are
asserted, or prior warnings about the possibility of damages outside
the scope of this section.
16. General Provisions
16.1. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts,
without reference to conflicts of law principles.
16.2. Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter herein
and merges all prior discussions between them. No modification of or
amendment to this Agreement, nor any waiver of
any rights under this Agreement, shall be effective unless in
writing and signed by both parties.
16.3. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed effective when delivered by hand,
confirmed facsimile transmission, or upon receipt when mailed by
registered or certified mail (return receipt requested), postage
prepaid, to the parties at the addresses listed in this Agreement
(or at such other address for a party as shall be specified by like
notice). Notwithstanding this clause, all reporting by cMeRun
described in Section 3.1 of this Agreement may be in electronic
format.
16.4. Independent Contractors. The parties to this Agreement are
independent contractors. Nothing contained in this Agreement shall
be construed to (i) give either party the power to direct or control
the day-to-day activities of the other, (ii) constitute the parties
as partners, joint ventures, co-owners or otherwise as participants
in a joint or common undertaking, or (iii) allow either party to
create or assume any obligation on behalf of the other party for any
purpose whatsoever.
16.5. Force Majeure. Except for the obligation to make payments,
nonperformance of either party shall be excused to the extent the
performance is rendered impossible by strike, fire, flood,
governmental acts or orders or restrictions, failure of suppliers,
or any other reason where failure to perform is beyond the
reasonable control of and is not caused by the negligence of the
non-performing party.
16.6. Non-assignability and Binding Effect. Neither party shall assign
this Agreement to any third party without the prior written consent
of the other party, provided, however, that the merger or
consolidation of one party into, or the sale of all or substantially
all of the assets of such party to, a third party shall not be
deemed to be an assignment. Subject to the foregoing, this Agreement
shall be binding upon and inure to the benefit of the parties hereto
and their permitted successors and assigns.
16.7. Legal Expenses. The prevailing party in any legal action brought by
one party against the other and arising out of this Agreement shall
be entitled, in addition to any other rights and remedies it may
have, to reimbursement of its expenses, including court costs and
reasonable attorneys' fees.
l6.8. Survival. The provisions of Sections 1, 12.1, 13.1, 13.2, 14.1,
15.1, 15.2, 16.1, 16.3, and 16.7 shall survive any terminate of this
Agreement.
16.9. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of
which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date set forth below.
CMeRun Corp. ISV
/s/ Xxxxx X. Xxxxx /s/ Xxxxxx Xxxxxx
------------------------------------- -------------------------------------
Signature Signature
Xxxxx X. Xxxxx XXXXXX XXXXXX
------------------------------------- -------------------------------------
Name (Print) Name (Print)
President President
------------------------------------- -------------------------------------
Title (Print) Title (Print)
Effective Date: 9/1/00
---------------------
cMeRun Corp. Information ISV Information WinStruct, Inc.
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Street address and/or XX Xxx Xxxxxx xxxxxxx xxx/xx X0 Xxx
Xxx Cabot Road 000 Xxxxxxxxxx Xxx. Xxxxx 000
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City & State/Province City & State/Province
Hudson, MA Boston, MA
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Postal code and Country Postal code and Country
01749, XXX 00000, XXX
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Contact name and title Contact name and title
Xxxxx Xxxxxxx, Xxx Xxxxxx xxx@xxxxxxxxx.xxx
Business Development Mgr.
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Phone number Phone number
000-000-0000 000-000-0000
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Fax number Fax number
000-000-0000 437-7765
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E-mail address E-mail address
xxxx@xxxxxxxxx.xxx
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Schedule A
Product List and pricing
Product bundles:
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Product Description ISV part number cMeRun monthly fee
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Getting Started Bundle (covers N/A $50
1000 subscribers/month)(1)
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(1) Getting Started Bundle includes access to each of the following titles:
o Getting Started Office 2000
o Getting Started Windows 95
o Getting Started Windows 98
o Getting Started Windows ME (Millennium Edition)
Pay-Per-View:
The following titles are offered on a 5-day rental basis for the fee indicated.
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Product Description ISV part number cMeRun fee to ISV
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Learn! Office 2000: PowerPoint N/A $1
2000
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Learn! Office 2000: Outlook 2000 N/A $1
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Learn! Office 2000: Excel 2000 N/A $1
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Learn! Office 2000: Word 2000 N/A $1
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Learn! Office 97: Microsoft Word, N/A $1
Excel, & Power Point
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Learn! Office 97: Microsoft N/A $1
Outlook 97
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Learn! FrontPage 2000: FrontPage N/A $1
2000
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Learn! Microsoft Works N/A $1
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Learn! Windows 98: Beyond the N/A $1
Basics
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Learn! Windows 98: Advanced N/A $1
Internet & E-mail
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Learn! Windows 98: Tips, Tricks & N/A $1
Shortcuts
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Learn! Windows 95: Internet, E- N/A $1
mail, Faxing & More!
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Learn! Windows 95: Tips, Tricks, N/A $1
& Shortcuts
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*All amounts are expressed in US Dollars
Schedule B
Reporting Format
CMeRun will provide to ISV a monthly report with the following information in
the format identified in the ASP Licensing Agreement.
o ASP Name
o Month for report
o ISV Part number
o Product description
o Unit price/Royalty rate
o Total number of end users
o Total quantity due to ISV (Users X Price)
Schedule C
ISV MARKS
