EXHIBIT 10.15
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OEM AGREEMENT
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THIS AGREEMENT ("Agreement") is made and entered into by and between Kana
Communications, Inc., a Delaware corporation with its principal offices located
at 00 Xxxxxx Xxxxxx, Xxxx Xxxx, XX 00000 ("Kana"), and Davox Corporation, a
Delaware corporation with its principal offices located at 0 Xxxxxxxxxx Xxxx
Xxxxx, Xxxxxxxx, XX 00000 ("OEM").
RECITALS
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WHEREAS, Kana manufactures, sells, licenses, supports, maintains and/or
otherwise distributes products and desires to grant OEM the right to sell,
sublicense, install, support and/or maintain one or more of those products (as
hereinafter defined) upon the terms and conditions set forth below,
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth below, the parties agree as follows:
1. DEFINITIONS
a. "Bundled Product" shall mean the Ensemble Customer Contact Suite
offering or other OEM product offered to OEM 's End-Customers containing
Software.
b. "Software" shall mean all software designated in Exhibit A, and all
related documentation provided therewith. Kana reserves the right to
make deletions, additions, substitutions and modifications to the
Software in its sole discretion upon not less than ninety (90) days
prior written notice.
c. "Specifications" shall mean those portions of Kana's published materials
made available for distribution with the Software and which describe the
specific functionality of the Software.
d. "End-Customer" shall mean a purchaser and/or OEM of any Software for
such purchaser's and/or OEM's actual use and not intended for resale.
e. "Territory" shall mean worldwide.
2. LICENSE. Subject to the terms of this Agreement, Kana grants to OEM a
nontransferable, nonsublicensable, nonexclusive, limited license to use the
Software only in the Territory and in accordance with the documentation
supplied by Kana only for the purpose of demonstrating the software in
object code form only to potential End-Customers.
3. OEM LICENSE.
a. Subject to the terms of this Agreement, Kana also grants to OEM a
nontransferable, nonexclusive, limited license to sublicense the
Software only as part of a Bundled Product, only in the Territory in
object code form only to End-Customers, either directly or through its
distribution partner ("OEM Partners"), for use only within the
Territory. Each product licensed by OEM that incorporates Software shall
be distributed by OEM only pursuant to an End-Customer License Agreement
signed by End-Customer prior to distribution of the Bundled Product to
that End-Customer, and which shall provide at as least much protection
to Kana as the terms of this Agreement. OEM agrees that in the event
such license is breached by an End Customer and such breach impacts
Kana's proprietary interests, it shall either: (i) enforce the End-
Customer License Agreement in order to protect the proprietary rights of
Kana hereunder, or (ii) in the event OEM fails to enforce such End-
Customer License Agreement to protect Kana's proprietary rights
hereunder, then to the extent legally
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permitted OEM hereby assigns its rights under such Sublicense Agreement
to Kana, but only to the extent necessary to protect Kana's rights
hereunder.
b. OEM may use its OEM Partners to distribute the Bundled Product provided
that OEM's obligations hereunder are not diminished, and OEM shall
ensure that such OEM Partners have entered into distribution agreements
that are at least as protective of Kana's interests hereunder with
comparable training, service, support and similar requirements. OEM
agrees that in the event such distribution agreement is breached by an
OEM Partner and such breach impacts Kana's proprietary and other
interests, it shall either: (i) enforce such distribution agreement in
order to protect the proprietary rights of Kana hereunder, or (ii) in
the event OEM fails to enforce such distribution agreement to protect
Kana's rights hereunder, then to the extent legally permitted OEM hereby
assigns its rights under such distribution agreement to Kana, but only
to the extent necessary to protect Kana's rights hereunder.
4. OWNERSHIP.
a. OEM may not decompile, reverse engineer or modify the Software, or
create derivative works therefrom and, except as described otherwise in
this Agreement, shall be bound by the terms herein. Notwithstanding the
foregoing, Kana grants OEM the right to integrate the Software within
OEM's software and products, subject to Kana's rights in the Software.
b. Notwithstanding the foregoing, and unless otherwise mutually agreed upon
in writing by the parties, to the extent that OEM conceives, learns, or
reduces to practice any work of authorship, idea or know-how (whether or
not patentable) directly derived from or directly relating to the
Software in the course of performance under this Agreement ("Work
Product") OEM hereby assigns such Work Product to Kana and any patent
rights, copyrights (including moral rights; provided that non-assignable
moral rights are waived to the extent permitted by law), trade secret
rights, and other rights with respect thereto. OEM agrees to take any
action reasonably requested by Kana to evidence, perfect, obtain,
maintain, enforce or defend the foregoing at Kana's cost.
c. OEM agrees that to the extent that any rights in any Work Product,
directly derived from or directly relating to the Software, are not
assigned to Kana hereunder:
i. OEM grants to Kana a world-wide permanent, irrevocable, royalty-
free, unlimited, fully paid-up license to such Work Product;
ii. OEM agrees not to assert, file or otherwise raise any claim or
action against Kana for the infringement of any rights of OEM in
such Work Product, directly derived from or directly relating to the
Software; and
d. OEM agrees that each copy of any Software, documentation, and all
packaging media used for their distribution, shall include reproductions
of the copyright notices and other proprietary legends of Kana as Kana
designates, in computer object code format or otherwise, which accompany
such items. OEM shall not remove, efface or obscure any copyright
notices or other proprietary notices or legends from any Kana materials
provided herein. Subject to the foregoing, OEM is permitted to, at its
own cost, brand the Bundled Software under its trademark, tradename and
other marks and names owned by OEM, including, without limitation,
developing packaging, documentation, marketing collateral splash
screens, and similar items with OEM's brand.
e. Any symbols, trademarks and service marks adopted by Kana to identify
the Software ("Trademarks") belong to Kana and OEM shall have no rights
in such Trademarks except as
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expressly set forth herein. OEM shall use such Trademarks only in
accordance with Kana's guidelines for use of the Trademarks. Any
symbols, trademarks and service marks adopted by OEM to identify the
Bundled Product belong to OEM and Kana shall have no rights in such
Bundled Product trademarks except as expressly set forth herein. Kana
shall use such Bundled Product trademarks only in accordance with OEM's
guidelines for use of such trademarks.
5. NON-EXCLUSIVITY BY KANA. Kana may appoint other companies to purchase,
resell, license, sublicense, install, support, maintain and/or otherwise
distribute one or more of its Software, including without limitation, those
that may compete with OEM. Kana reserves the sole and exclusive right to
solicit, authorize, approve, disapprove or terminate any current or
prospective OEM. Nothing in this Agreement shall be construed to prohibit
Kana from selling, licensing, sublicensing, installing, supporting,
maintaining and/or otherwise distributing its Software directly, indirectly,
or through other channels.
6. OBLIGATIONS OF OEM. OEM shall:
a. Promote and sublicense, install, support and/or maintain (as hereinafter
defined) the Software as part of the Bundled Product;
b. At OEM's discretion, inform current and potential Customers of new
Software offerings, as well as of enhancements to current Software;
c. Include with the Software any and all documentation included by Kana
(which may be under OEM's private label brand) at time of shipment or as
otherwise required by Kana;
d. Maintain sufficient demonstration units and facilities for supporting,
marketing and promotion of the Software as part of the Bundled Product;
e. Represent Kana, the Software and the Bundled Product in a professional,
responsive and favorable manner at all times during the term of this
Agreement;
f. Provide installation, integration and other services to End-Customers at
commercially reasonable standards;
g. Promptly transmit to Kana any current or potential End-Customer
complaints, concerns or other information concerning Kana or the
Software;
h. In OEM's sole discretion, make professional and timely responses to
prospective End-Customer leads to the extent provided by Kana;
i. Place the `Powered by Kana' logo on OEM's website and a software splash
screen in a mutually agreeable location prior to distribution by OEM of
any Software;
j. Use its best efforts to inform Kana of any known violations or
infringements under any End-Customer License Agreement;
k. Ensure that all personnel engaged in the sale and support of the
Software attend the applicable training courses specified in Exhibit C
of this Agreement entitled `TRAINING'; and
l. Within thirty (30) days following the mutual execution of this
Agreement, prepare and provide to Kana a written forecast of anticipated
Software licenses under this Agreement for the next twelve (12) months.
OEM shall prepare and provide an updated forecast quarterly thereafter.
Such forecasts are not binding on Kana or OEM.
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7. OBLIGATIONS OF KANA.
a. Kana shall make available to OEM reasonable quantities, in camera ready
format, of Kana's standard marketing, technical, End-Customer and
promotional materials so as to allow OEM to private label such
materials. Additionally, Kana shall provide to OEM all updates to such
documentation as soon as reasonable with the objective that such
documentation would be delivered within five (5) business days from the
date that such is approved internally at Kana. Kana will, at OEM's cost,
also make available to OEM reasonable quantities of Kana's artwork,
graphics, presentational materials and other promotional materials,
which Kana has developed or may develop to promote Kana and the
Software.
b. Kana shall provide to OEM a master copy of the Software (the "Master
Copy") for integration into the Bundled Products provided however, that
license keys must be obtained from Kana for each Software order. Such
Software shall be enabled to allow OEM to replace the Kana logo with
OEM's private label wherever the Kana logo appears
c. Not less than on a quarterly basis, Kana shall provide to Davox, a
product development roadmap. Such roadmap should provide to OEM
information relating to Kana's current and future product development
plans. In addition, Kana shall invite Davox to participate in its "beta"
programs.
d. Kana shall make available the necessary training of OEM personnel to
enable it to effectively market and resell the Software and to train,
implement and support it in an End Customer environment at the price set
forth on Exhibit A.
e. Kana shall provide to OEM twenty (20) copies of the Software for use by
OEM internally for non-production evaluation, demonstration and
development purposes only, free of charge, to allow OEM to effectively
resell and integrate the Software. Maintenance and other services
related to these copies, to the extent ordered, shall be charged the fee
specified on Exhibit A.
f. As provided herein, Kana shall respond promptly to reports from OEM of
End-Customer or OEM complaints, concerns or problems concerning the
Software.
g. Subject to mutual agreement on integration, cost and support issues, OEM
shall have the opportunity to bundle any improvements or modifications
to the Software and new products offered by Kana.
h. Kana agrees to provide and maintain an application programmer interface
(API) into the Software that will allow its integration with Davox's
Ensemble. The parties will work together to develop a mutually agreed
upon specification, including a schedule for availability, which will be
completed and delivered to Davox by Nov. 30, 1999. Kana will use
commercially reasonable efforts to meet the terms of that schedule.
8. INTEGRATION.
a. The parties shall cooperate with one another in good faith in order to
complete the integration of the Software into OEM's Ensemble customer
contact suite or other OEM product(s). Each party shall make available
in a timely manner at no charge to the other party all technical data,
files, documentation, sample output, or other information and resources
reasonably required by the requesting party for the performance of the
Integration Services. All such technical data, files, documentation,
sample output, or other information and resources shall be deemed
Confidential Information as defined hereunder.
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i. Tasks that are primarily the responsibility of OEM's personnel will
remain OEM's responsibility and will remain under OEM's supervision,
management and control, even if Kana assists OEM in performing such
tasks. OEM shall reasonably cooperate with Kana and provide such
reasonable assistance as both parties may reasonably determine, in
connection with Kana's efforts to obtain all consents, approvals and
authorizations of and cooperation from third parties needed by Kana to
effectuate the transactions contemplated hereby and give all reasonable
notices to third parties which may be reasonably necessary or reasonably
required in order to effectuate the transactions contemplated hereby.
OEM and Kana each shall bear any costs resulting from the other's
failure to meet these obligations.
9. SUPPORT. OEM shall provide pre and post-installation support and service for
the Software to OEM's End-Customers in accordance with Exhibit B. OEM's
support obligations shall be undertaken only by personnel who have completed
Kana's training and have obtained Kana's authorization. OEM shall provide
support at the response levels described in Exhibit B attached hereto.
Subject to payment of the appropriate support fees set forth in Exhibit A,
Kana shall provide technical support as described in Exhibit B.
10. PAYMENT
a. OEM shall pay Kana the OEM Fee as set forth in Exhibit A and Exhibit A-1
for each copy of the Software and maintenance services that it sub-
licenses to End-Customers pursuant to this Agreement. OEM's payments of
Fees hereunder shall be due and payable forty-five (45) days after the
date of Kana's invoice, which invoice shall not be issued (i) for
Licenses, Professional Services and Training until after the date of the
applicable order from OEM; and (ii) for Maintenance and Support, until
the end of the warranty period set forth in Section 16(a) of this
Agreement. Along with such payment, OEM shall provide Kana with a
detailed report of all Software licensed, maintenance contracts signed
and other services provided to any party which OEM is required to
furnish payment to Kana. Such report shall include information
reasonably available to OEM, including, by way of example, and without
limitation, the name of each End-Customer, the location of each
installation and instance of each piece of Software, and other
information as may be reasonably requested by Kana and agreed to by OEM.
b. Kana reserves the sole right to change the "OEM Fee" for any Software
after the second (2/nd/) year of the Initial Term in a manner consistent
with changes to Kana's standard price list Kana will provide OEM with
not less than ninety (90) days prior written notice of any such change.
c. The payment method hereunder will be as Kana reasonably directs from
time to time. All License and OEM Fees are exclusive of shipping, taxes,
duties and the like, which shall be paid by OEM. All undisputed late
payments (i.e., payments that have not been received by Kana within
thirty (30) days from the date OEM receives written notice of such
payment being late) shall be assessed a service charge of 1.5% per month
to the extent allowed by law. For international shipments, outside the
United States, OEM will be responsible in advance for all applicable
shipping charges, taxes, customs charges, duties, brokerage fees or
common carrier charges.
d. OEM shall keep, maintain and preserve for at least three (3) years
following termination or expiration of the term of this Agreement or any
renewal(s) thereof, accurate records relating to OEM's obligations
hereunder. Such records shall be maintained as Confidential Information,
but shall be available for inspection and audit as provided herein. Kana
shall have the right at least once per calendar year to have an
independent public accountant, reasonably acceptable to OEM, examine
OEM's relevant books, records and accounts
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specifically relating to this Agreement for the purpose of verifying the
accuracy of payments made as required under this Agreement. Such
independent public accountant must agree in writing to be bound to the
confidentiality provision contained in this Agreement. Kana acknowledges
and agrees that such accountant shall not have access to the books,
records, and accounts relating to other products or services except as
such books, records and accounts also directly relate to the payments
due hereunder. Each audit will be conducted at OEM's place of business,
or other place agreed to by the Parties, during OEM's normal business
hours and with at least thirty (30) days prior written notice to OEM.
Kana shall pay the fees and expenses of the auditor for the examination;
provided that should any examination disclose a greater than five
percent (5%) shortfall in the payments due Kana for the period being
audited, OEM shall pay the reasonable fees and expenses of the auditor
for that examination.
11. TERM AND TERMINATION
a. The term of this Agreement shall be for a period of five (5) years,
beginning on the date this Agreement is executed by OEM ("Effective
Date"). Thereafter, this Agreement shall be renewed for successive one
(1) year terms without further notice, unless terminated sooner as
provided under the provisions herein, or unless either party elects not
to renew this Agreement by providing the other party notice thereof not
less than thirty (30) days prior to the renewal date.
b. For purposes of this Agreement, OEM shall be in default if it:
i. breaches a material term or condition of this Agreement and fails to
cure such breach within thirty (30) days of Kana's written notice to OEM
of such material breach, except that no such cure period shall apply to
any breaches by OEM of the terms of Sections 4 or 15 of this Agreement;
ii. shall cease conducting business in the normal course, become
insolvent, make a general assignment for the benefit of creditors,
suffer or permit the appointment of a receiver for its business or
assets, or shall avail itself of or become subject to any proceeding
under the Federal Bankruptcy Act or any other federal or state statute
relating to insolvency or the protection of rights of creditors;
iii. is unable or unwilling to provide Software support to End-
Customers that have been sold Software by OEM hereunder, other than as a
result of a breach by Kana of its obligations under this Agreement;
iv. fails to maintain Kana Qualification (as defined in the Section
entitled `TRAINING' below) and fails to cure such breach within thirty
(30) days of Kana's notice to OEM of such breach);
v. assigns or purports to assign or otherwise transfer this Agreement
or any of its rights hereunder to any other party without the prior
written approval of Kana or as otherwise permitted in this Agreement; or
vi. OEM fails to pay to Kana the Fees in the amounts and schedule set
forth in Exhibit A hereto and fails to cure such breach within thirty
(30) days of Kana's notice to OEM of such breach).
vii.
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c. Upon the occurrence of an event of default as described in Section 11(b)
by OEM, Kana may immediately terminate this Agreement by providing
written notice of such termination to OEM.
d. During the first two years of this Agreement, in the event Kana seeks to
assign this Agreement to any of the following competitors of OEM -
Genesys/Alcatel, Cisco/Geotel, Lucent, Aspect, Interactive Intelligence,
Apropos, eShare, EIS, Quintus, Kana shall notify OEM of Kana's intent to
assign, including the identity of the proposed assignee. OEM shall then
have a period of ten (10) business days to terminate this Agreement,
such termination to be effective immediately. Upon such termination, OEM
shall have no obligation with respect to any Minimum Commitments
following the termination date.
e. Upon termination or expiration of this Agreement by either party
pursuant to the provisions set forth herein, the following provisions
shall apply:
i. After termination, Kana shall not be required to accept purchase
orders or make any shipments to OEM, and Kana reserves the right to
require advance payment, or other agreed arrangements, for any
shipments made or service performed.
ii. Following termination or expiration of this Agreement, Kana shall
continue to honor its maintenance and warranty obligations as
provided for in this Agreement with regard only to Software sold by
OEM prior to the date of termination or expiration. Kana will
continue to provide maintenance service to any end user that OEM
has registered with Kana until such obligation ends. Thereafter,
Kana agrees to offer support to OEM at then current Kana rates and
terms for a period of two (2) years. Thereafter, OEM shall, at its
sole discretion, direct End-Customers to purchase support services
directly from Kana. To the extent End-Customer enters into a
maintenance and support agreement with Kana, Kana shall provide
maintenance support to such End-Customer.
iii. The expiration and/or termination of this Agreement shall not alter
the rights, duties or obligations of the parties under this
Agreement including without limitation payment obligations, which
arise prior to the date of expiration or termination. In the case
of the Minimum Guaranteed amounts set forth on Exhibit A, the
entire amount shall be due in full within ten (10) business days of
termination.
iv. Following termination, OEM shall be entitled to deploy any copies
of prepaid but undeployed Software, including any related
documentation and supporting materials. To the extent OEM desires
to take additional training or obtain maintenance and support for
such Software deployments after termination, such fees will be at
the then current list prices for such services.
12. TRADEMARKS, PRODUCT MARKINGS AND GOODWILL
a. OEM acknowledges that the marks "Kana", "Kana CMS", Kana logo, and all
other trademarks, trade names or service marks that Kana may designate
from time to time (the "Marks"), and all registrations thereof, are good
and valid and are solely and exclusively owned by Kana. OEM agrees that
it will use and display the Marks only in the form or for the purposes
authorized by Kana in this Agreement. OEM further acknowledges that this
Agreement does not grant OEM any right, title or interest in the Marks
or goodwill associated with Kana and the Software as represented and
symbolized by the Marks.
b. OEM shall not take any action, or fail to take any action, during or
after the term of this Agreement, which could adversely affect the
validity or enforceability of Kana's Marks.
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c. In order to preserve and protect the goodwill, reputation and image of
Kana and the Software, OEM shall:
i. Not engage in any deceptive, misleading or unethical practices,
which are or might be detrimental to Kana or the Software;
ii. Refrain from making any false, misleading or deceptive
representations with regard to Kana or the Software; and
iii. Refrain from making any representations, warranties or guarantees
to Customers or prospective Customers or other third parties with
respect to the specifications, features or capabilities of the
Software that are inconsistent with the literature or other
information provided or prepared by Kana.
d. Immediately following the expiration or termination of this Agreement
for any reason, OEM shall discontinue use of the aforementioned Marks
and return, or dispose of, as Kana may direct, any signs or other
promotional displays directly or indirectly referencing or relating to
Kana and/or any of the Software or Marks. If, after expiration or
termination of this Agreement, OEM makes any further use of the Marks,
except as necessary to complete any ongoing obligations under this
Agreement, such use shall be deemed a breach of this Agreement for which
no adequate remedy at law exists. In such case, Kana may be entitled to
seek immediate injunctive relief from an appropriate court. This
provision shall not apply to any Bundled Products or related
documentation delivered to OEM as a result of a prepaid license fees, as
a result of unfulfilled orders, or the provision of support as described
in Section 11(e)(ii) or 11(e)(iv).
13. TRAINING.
a. An appropriate number of personnel of OEM engaged in the sales, support,
development or maintenance of the Software shall obtain the appropriate
Kana Qualification. Kana Qualification is obtained by completing Kana's
training requirements as currently defined by Kana in Exhibit C, and as
otherwise generally required of partners under the Kana partner
programs.
b. Kana shall make available its standard training program to the number of
employees of OEM set forth in Exhibit C hereto. OEM may purchase
training for additional employees at the rate set forth in Exhibit C.
All out of pocket costs, including without limitation costs associated
with travel to the training location, are at the expense of OEM.
14. INDEMNIFICATION
a. Kana agrees, at its own expense, to defend or, at its option, to settle,
any claim or action brought against OEM or any End-Customer to the
extent it is based on a claim that the Software as used within the scope
of this Agreement infringes or violates any copyright, trademark, trade
secret or U.S. patent of a third party, and will indemnify and hold OEM
and such End-Customer harmless from and against any damages, costs and
fees reasonably incurred (including reasonable attorneys' fees) by or
which are assessed against OEM or such End-Customer that are directly
attributable to such claim or action. OEM agrees that Kana shall be
released from the foregoing obligation unless OEM or such End-Customer
provides Kana with: (i) prompt written notification of the claim or
action once it becomes aware; (ii) sole control and authority over the
defense or settlement thereof; and (iii) at cost to Kana, all reasonably
available information, assistance and authority to settle and/or defend
any such claim or action, except that Kana may not enter into any
settlement of any claim hereunder which settlement shall subject OEM and
such End-Customer to any liability
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or obligations unless OEM approves such settlement agreement in writing,
which approval shall not be unreasonably withheld. Notwithstanding the
foregoing, Kana shall have no liability hereunder based on (i) use of a
superseded or modified release of the Software, except for such
alteration(s) or modification(s) which have been made by Kana or under
Kana's direction, if such infringement would have been avoided by the use
of a current unaltered release of the Software that Kana provided to OEM or
such End-Customer prior to OEM or End-Customer's receipt of such threat or
claim, or (ii) the combination, operation, or use of any Software furnished
under this Agreement with programs not furnished by or approved by Kana if
such infringement would have been avoided by the use of the Software
without such programs. In the event that an injunction is obtained against
OEM or such End-Customer prohibiting use of the Software by reason of
Kana's infringement of a patent, copyright or other intellectual property
right of any third party, Kana will, at its option and expense, either (a)
secure for OEM and such End-Customer the right to continue using the
Software; (b) replace or modify the Software to make it non-infringing, but
functionally equivalent; or, if neither of the foregoing are available on
commercially reasonable terms as determined solely by Kana in its
reasonable opinion (c) direct OEM and such End-Customer to discontinue
using the Software, and provide OEM or such End-Customer with a refund of
all monies paid by OEM or such End-Customer within the forty-eight (48)
months prior to such injunction.
b. OEM agrees, at its own expense, to defend or, at its option, to settle, any
claim or action brought against Kana to the extent it is based on a claim
that the Bundled Product infringes or violates any copyright, trademark,
trade secret or U.S. patent of a third party, and will indemnify and hold
Kana harmless from and against any damages, costs and fees reasonably
incurred (including reasonable attorneys' fees) by or which are assessed
against Kana that are directly attributable to such claim or action . Kana
agrees that OEM shall be released from the foregoing obligation unless Kana
provides OEM with: (i) prompt written notification of the claim or action;
(ii) sole control and authority over the defense or settlement thereof; and
(iii) at no cost to OEM, all reasonably available information, assistance
and authority to settle and/or defend any such claim or action, except that
OEM may not enter into any settlement of any claim hereunder which
settlement shall subject Kana to any liability or obligations unless Kana
approves such settlement agreement in writing, which approval shall not be
unreasonably withheld. Notwithstanding the foregoing, OEM shall have no
obligation under this Section (b) to the extent such infringement would
have arisen from use of the Software alone or in combination with other
items provided or approved by Kana, other than items supplied by OEM. OEM's
obligation under this Section (b) shall not restrict or limit Kana's
obligations under Section 14(a).
15. CONFIDENTIALITY AND NON-DISCLOSURE
a. Each party (the "Receiving Party") acknowledges that, during the term of
this Agreement, it may receive from or on behalf of the other party (the
"Disclosing Party"), information relating to the Disclosing Party
("Confidential Information"). Such Confidential Information shall belong
solely to the Disclosing Party and includes, but is not limited to, this
Agreement, trade secrets, know-how, inventions (whether or not patentable),
techniques, processes, programs, ideas, algorithms, schematics, testing
procedures, software design and architecture, computer code, internal
documentation, design and function specifications, product requirements,
problem reports, analysis and performance information, software documents,
and other technical, business, product, marketing and financial
information, plans and data, and any documents derived therefrom. The
Software and all Ensemble software shall be deemed Confidential
Information.
b. Notwithstanding the foregoing, Confidential Information shall not
include information that:
i. is or subsequently becomes public without breach of this Agreement by
the Receiving Party, its officers, directors, employees or agents;
ii. was previously in the Receiving Party's possession (in written or
other recorded form) with no obligation to maintain confidentiality;
iii. was received from a third party not under any obligation of
confidentiality to the Disclosing Party; or
iv. was developed by the Receiving Party's employees, agents, contractors,
and/or representatives independently of, and without reference to, any
Confidential Information.
c. The Receiving Party acknowledges that all Confidential Information is the
exclusive property and trade secrets of the Disclosing Party or its owner
as appropriate. The Receiving Party agrees not to use or disclose any
Confidential Information in any manner adverse to the best interests of the
Disclosing Party or contrary to the Disclosing Party's express
instructions, and to discontinue all use of Confidential Information
immediately upon the expiration or termination of this Agreement for any
reason. The Receiving Party further agrees that its right to use
Confidential Information is limited solely to the use thereof in connection
with this Agreement. OEM shall also advise all of its employees, officers,
directors, agents and sales representatives of the obligations herein and
shall ensure such parties compliance with these requirements.
d. The Receiving Party shall provide the Disclosing Party with written notice
within ten (10) days of any known loss, theft, piracy or unintended or
unauthorized disclosure of any Confidential Information.
e. The foregoing confidentiality requirements shall survive the termination or
expiration of this Agreement, and shall continue for a period of seven (7)
years thereafter, provided, however Confidential Information considered a
trade secret shall be maintained in a confidential manner for as long as
such Confidential Information is considered a trade secret. The Receiving
Party agrees and acknowledges that a breach of this confidentiality and
non-disclosure obligation will likely result in irreparable harm to the
Disclosing Party for which no adequate remedy at law exists. In such case,
the Receiving Party agrees that the Disclosing Party shall be entitled to
seek immediate injunctive relief from an appropriate court.
16. LIMITED WARRANTIES
a. Limited Software Warranty. Kana warrants that, for a period of one-
-------------------------
hundred eighty (180) days from the date OEM orders the Software from Kana,
(a) the Software will in all material respects operate in accordance with
the accompanying printed materials, and (b) the medium upon which the
Software is provided by Kana to OEM shall be free from defects in material
and workmanship under normal use. This warranty covers only problems
reported to Kana during the warranty period.
b. Kana represents and warrants that all services performed hereunder shall be
performed in a professional and workmanlike manner.
c. Year 2000 Warranty: Kana represents and warrants until January 31, 2001
------------------
that the Software is designed to be used prior to, during, and after the
year 2000 A.D. and that it will operate during such time periods without
error relating to date data which represent or reference different
centuries or more than one century; that no value for current date will
cause interruptions in normal operation; that all manipulations of
calendar-related data (dates, durations, days of week, etc.) will produce
correct results for all valid date values; that date
Page 10
elements in interfaces and data storage permit specifying century to
eliminate date ambiguity; and that for any date element represented without
century, the correct century is unambiguous for all manipulations involving
that element. Notwithstanding the foregoing, OEM acknowledges and agrees
that (a) the Software does not identify or remedy Year 2000 problems in
third party operating systems or other applications not supplied by Kana
and (ii) the Software operates with the date information it receives; thus,
if incorrect date information is provided by the user, the operating system
or from any other external product or other source, this information will
be used by the Software as received. The foregoing Year 2000 Compliance
Warranty shall not apply to Year 2000 problems caused by such external
sources. Notwithstanding any other provision herein, in any action to
recover damages resulting directly or indirectly from a computer date
failure, including any action based on an alleged computer date failure,
the damages that may be recovered by OEM shall be limited to the extent
those damages are incurred as a proximate and direct result of Kana's
noncompliance or such Software's failure.
d. Warranty Tracking. It is OEM's obligation to maintain sufficient
-----------------
documentation and records to track Software warranties for its Customers.
Kana assumes no responsibility to monitor or inform OEM of the tracking or
expiration of applicable warranties for Software sold or licensed by OEM;
such responsibility is solely that of OEM.
e. Exclusions From Warranties. KANA DOES NOT WARRANT THAT THE OPERATION OF
--------------------------
ANY PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE. THE LIMITED WARRANTIES
PROVIDED HEREIN ARE NON-TRANSFERABLE, EXCEPT TO END-CUSTOMERS THAT HAVE
PROPERLY LICENSED THE SOFTWARE AND ONLY FOR THE WARRANTY PERIOD AS MEASURED
FROM THE ORDER DATE BY OEM FROM KANA, CONTINGENT UPON THE PROPER
INSTALLATION AND USE OF THE RESPECTIVE PRODUCT IN ACCORDANCE WITH KANA'S
SPECIFICATIONS, AND SUBJECT TO ALL LIMITATIONS AND RESTRICTIONS SET FORTH
HEREIN. THESE WARRANTIES DO NOT APPLY TO ANY PRODUCT THAT (i) IS IN AN
OPERATING ENVIRONMENT THAT DOES NOT COMPLY WITH KANA'S SPECIFICATIONS; (ii)
HAS BEEN REPAIRED OR MODIFIED BY PERSONS OTHER THAN KANA OR ITS AUTHORIZED
TECHNICIANS (WHICH SHALL INCLUDE DAVOX EMPLOYEES WHO HAVE OBTAINED KANA
QUALIFICATIONS HEREUNDER); OR (iii) HAS BEEN DAMAGED OR RENDERED
UNSERVICEABLE BY IMPROPER MAINTENANCE, ABUSE OR NEGLIGENCE ON THE PART OF
PARTIES, OTHER THAN KANA.
f. Limited Remedies Under Warranties. Subject to the restrictions and
---------------------------------
limitations contained herein, and within the applicable warranty period,
Kana shall, free of charge, at its sole option, promptly repair or replace
defective or nonconforming Software or components thereof; provided
however, that Kana is notified in writing or by electronic mail of the
defect or nonconformity within the applicable warranty period. Kana's
response levels under its warranty obligations will be the same as Kana's
support obligations as described in Exhibit B. All replaced Software or
components thereof shall become Kana's property. THIS LIMITED REMEDY
CONSTITUTES OEM'S SOLE AND EXCLUSIVE REMEDY UNDER THE LIMITED WARRANTIES.
g. Disclaimer of Other Warranties. THE EXPRESS WARRANTIES SET FORTH
------------------------------
HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY SPECIFICALLY DISCLAIMED.
Page 11
17. LIMITATIONS OF LIABILITY\REMEDIES
a. OEM AND CUSTOMER'S SOLE REMEDIES FOR KANA'S NONPERFORMANCE OR OTHER
LIABILITY OF ANY KIND ARISING HEREUNDER, WHETHER IN CONTRACT OR IN TORT,
ARE LIMITED TO THE EXPRESS REMEDIES PROVIDED HEREIN. EXCEPT AS PROVIDED
UNDER SECTION 14 AND OTHER THAN FOR BREACHES OF SECTION 15, IN NO EVENT
WILL EITHER PARTY'S LIABILITY TO THE OTHER OR TO ANY END-CUSTOMER FOR
DAMAGES OF ANY NATURE, WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT,
STRICT LIABILITY OR OTHERWISE, EXCEED IN THE AGGREGATE THE TOTAL AMOUNTS
PAID BY OEM HEREUNDER.
b. EXCEPT AS PROVIDED FOR BREACHES OF SECTION 15, NEITHER PARTY WILL BE LIABLE
FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR ANY
LOSS OF PROFIT, REVENUE, SOFTWARE OR DATA, COMPUTER VIRUSES AND TOLL FRAUD
EVEN IF THE OTHER PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
POTENTIAL LOSS OR DAMAGE.
c. BOTH PARTIES ACKNOWLEDGE THAT THE PRICES CHARGED TO HEREIN CONTEMPLATE THE
FOREGOING ALLOCATION OF RISKS. EACH PARTY IS SOLELY RESPONSIBLE FOR THE
PROTECTION AND BACK-UP OF ALL ITS -SUPPLIED DATA AND SOFTWARE USED IN
CONJUNCTION WITH THIS AGREEMENT.
18. SOURCE CODE ESCROW. During the term of this Agreement, Kana shall add OEM
as a beneficiary to Kana's source code escrow agreement. Kana grants to OEM a
limited, nonexclusive, nontransferable, nonsublicensable internal-use-only
license to the source materials for the Software, to allow OEM to maintain,
correct errors, support its use of the Software and continue exercising the
license under the terms of this Agreement (but not to otherwise modify or create
derivative works of the Software) upon the occurrence of the following release
conditions
a. Kana materially breaches its Maintenance and Support obligations set forth
in Exhibit B or its warranty obligation to OEM under Section 16(e); and
i. OEM provides to Kana written notice of the material breach and of
OEM's intent to exercise this Source Code Escrow right; and
ii. for a period of at ninety (90) days after Kana's receipt of the
foregoing written notice, Kana is unwilling or simply refuses to
provide support services in material breach of Kana's maintenance and
support obligations set forth on Exhibit B; and
iii. provided that this subpart (a) shall not apply in the case where Kana
is using its best commercially reasonable efforts to resolve the
material breach; or
iv. Kana makes an assignment for the benefit of creditors, seeks
protection under any bankruptcy, receivership or comparable
proceeding, or if any such proceeding is instituted against Kana (and
not dismissed within ninety (90) days).
19. MISCELLANEOUS PROVISIONS
a. Governing Law and Forum Selection. This Agreement shall be construed
---------------------------------
and enforced in accordance with the laws of the State of Illinois United
States of America and all disputes hereunder shall be resolved in the
courts governing, Chicago, Illinois and the parties consent
to jurisdiction therein. The United Nations Convention on Contracts for the
International Sale of Goods shall not apply to this Agreement.
b. Injunctive Relief. The parties acknowledge and agree that due to the
-----------------
unique nature of the Software, the Bundled Product and the parties'
Confidential and Proprietary Information, there can be no adequate remedy
at law for any breach of the confidentiality obligations hereunder and
OEM's obligations with respect to the Software, and that any such breach
may allow third parties to unfairly compete with the parties hereto
resulting in irreparable harm and, therefore, that upon any such breach or
threat thereof, the non-breaching party shall be entitled to seek an
injunction and any other appropriate equitable relief, in addition to
whatever remedies it may have at law.
c. Non-Solicitation. During the term of this Agreement, neither party shall
----------------
directly solicit to hire any employee of the other except with the prior
written consent of the other; provided, however, that neither party shall
be prevented from (i) soliciting to hire employees through classified
advertising or (ii) hiring any employee of the other party so long as such
hiring was not initially solicited, directly, by the hiring party. General
advertisements shall not be deemed "solicitation" hereunder.
d. No Assignment. The rights and obligations of the parties hereunder
-------------
shall neither be assigned, subcontracted, delegated or otherwise
transferred without the prior written consent of Kana. Otherwise, this
Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. An assignment
as permitted herein shall not diminish any rights or duties that either
party may have prior to the effective date of assignment. Notwithstanding
the foregoing, OEM may assign this Agreement to any successor, whether
direct or indirect, who is not, in Kana's reasonable opinion, a competitor
of Kana, by way of purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of OEM, provided that OEM
provides Kana with reasonable prior written notice.
e. Force Majeure. Neither party shall be considered in default due to any
-------------
delay or failure in performance hereunder based on fire, strike, embargo,
requirement of governmental, civil or military authority, act of God or the
public enemy, failure of suppliers, or other causes beyond the reasonable
control of Kana or OEM. When the delaying cause ceases, performance will
resume, subject to an equitable schedule adjustment if necessary. If the
delaying cause continues for more than sixty (60) days, the party injured
by the other's inability to perform may by written notice cancel the
affected purchase order or part thereof as to the Software not already
delivered or service not performed.
f. Compliance With Laws. Each party shall comply with all federal, state
--------------------
and local laws and regulations which may be applicable, including without
limitation, those applying to employers, the procurement of permits, export
documents, licenses or certificates where needed, and those applying to
packing, labeling and shipping, whether the shipment or services are
interstate, intrastate or outside of the continental United States. Each
party shall bear all costs associated with its compliance with laws,
including but not limited to procurement of permits, licenses or
certificates. OEM agrees that Kana Software will not be shipped into a
restricted country as defined under the United States Export Regulation,
Part 740.3 (d) and 772, as amended. Each party (the "Indemnifying Party")
agrees to indemnify, hold harmless and defend the other party from and for
any loss, damage, liability, claim or demand, fines or penalties, including
costs, expenses and reasonable attorneys' fees, claimed or assessed against
such other party or that may be sustained by such other party by reason of
the Indemnifying Party's failure to comply with this Section.
g. Governing Language. The English language shall govern and control any
------------------
translations of this Agreement into any other language.
h. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument; however, this
Agreement shall be of no force or effect until executed by both parties.
i. Notices. All notices, requests, demands and other communications called
-------
for or contemplated hereunder shall be in writing and shall be deemed to
have been duly given when (i) personally delivered; (ii) two (2) days after
mailing by certified or registered first-class mail, prepaid, return
receipt requested; (iii) one (1) day after deposit with any nationally
recognized overnight courier, with written verification of receipt; (iv)
facsimile, with written verification of receipt and follow-up by mail, and
addressed to the party as follows (or at such other address as the parties
may designate by written notice):
Kana Communications Inc. Davox Corporation
00 Xxxxxx Xxx. 0 Xxxxxxxxxx Xxxx Xxxxx
Xxxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
Attention: Corporate Counsel Attention: General Counsel
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
j. No Implied Waivers. The failure of either party at any time to require
------------------
performance by the other party of any provision hereof shall not affect in
any way the full rights to require such performance at any time thereafter
unless such waiver is in writing. The waiver by either party of a breach of
any provision hereof shall not be taken, construed, or held to be a waiver
of the provision itself or a waiver of any breach thereafter or any other
provision hereof unless specifically stated in writing.
k. Captions and Section Headings. Captions and section headings used herein
-----------------------------
are for convenience only, are not a party of this Agreement, and shall not
be used in construing it.
l. Severability. A judicial determination that any provision of this
------------
Agreement is invalid, in whole or in part, shall not affect the
enforceability of those provisions found not to be invalid.
m. Authority. The persons and parties executing this Agreement warrant that
---------
they have the requisite and full authority to do so in the designated
capacity.
n. No Conflicting Agreements. To the best of either parties knowledge, the
-------------------------
parties warrant and represent that they are not bound by any other
agreements, restrictions or obligations, contractual or otherwise, nor will
either party enter into or assume any contract, restriction or obligation,
which would directly breach the provisions of this Agreement.
o. Relationship of the Parties. Kana and OEM are acting solely as licensor
---------------------------
and OEM, respectively. All sublicenses of Software by OEM shall be for
OEM's own account as a principal and not as an agent of Kana. OEM shall act
in all respects as an independent contractor and not as a legal
representative or agent of Kana. This Agreement shall not be construed to
create a relationship of partners, joint venturers, brokers, employees,
agents, master or servant between the parties. Neither party shall have the
right or authority to assume or create any responsibility, expressed or
implied, in the name of the other or to bind the other in any manner or
thing whatsoever.
Page 14
p. Survival. All obligations incurred under this Agreement which by their
--------
nature would survive, including without limitation the obligations
contained in Sections 1, 4, 10, 11, 12, 15, 17 and 19 herein, shall be
deemed to survive the cancellation, termination or expiration of this
Agreement.
q. Entire Agreement. his Agreement constitutes the entire agreement between
----------------
the parties hereto pertaining to the subject matter hereof, superseding any
and all previous proposals, representations or statement, oral or written.
Any previous agreement between the parties pertaining to the subject matter
of this Agreement are hereby expressly canceled and terminated. The terms
and conditions of each party's purchase orders, invoices,
acknowledgments/confirmations or similar documentation shall not apply to
any order hereunder, and any such terms and conditions thereon shall be
deemed to be objected to without the need of further notice or objection.
Other than as expressly permitted herein, any modifications of this
Agreement must be in writing and signed by authorized representatives of
both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the latter
date of execution.
KANA COMMUNICATIONS, INC. DAVOX CORPORATION
By: /s/ Xxxxxxx XxXxxxxxx By: /s/ Xxxxxxxx X. Xxxxxxxx
----------------------------- -------------------------------
Name: Xxxxxxx XxXxxxxxx Name: Xxxxxxxx X. Xxxxxxxx
--------------------------- -----------------------------
(print or type) (print or type)
Title: CEO Title: Chairman / CEO
--------------------------- ----------------------------
Date: Nov. 16, 1999 Date: Nov. 16, 1999
--------------------------- ----------------------------
Page 15
Exhibit A
Software Description, OEM Fees and Minimum Guaranteed
1. Software Description: Kana's U.S. and Canada Price List is attached as
--------------------
Exhibit A-1. Kana shall promptly provide to OEM Kana's international List
Price.
2. Discount: During the initial five -year term of this Agreement, Kana grants
--------
OEM the following pricing:
--------------------------------------------------------------------------------
Software [CONFIDENTIAL TREATMENT REQUESTED]/*/ off the
then current applicable List Price for the
Software.
--------------------------------------------------------------------------------
Third Level Support [CONFIDENTIAL TREATMENT REQUESTED]/*/ of the
then current applicable List Price for the
Software.
--------------------------------------------------------------------------------
Professional Services $[CONFIDENTIAL TREATMENT REQUESTED]/*/ per
day.
--------------------------------------------------------------------------------
Training [CONFIDENTIAL TREATMENT REQUESTED]/*/ off the
then current List Price for Training.
--------------------------------------------------------------------------------
After the initial five-year term, the parties shall mutually agree to an
appropriate discount schedule, else the Agreement shall terminate. If under
this present agreement the value of the maintenance fees paid to Kana by Davox
for support exceeds [CONFIDENTIAL TREATMENT REQUESTED]/*/ annually, Davox
reserves the right to renegotiate the support fees portion of the agreement down
to better represent the volume of business.
3. Minimum Guaranteed: During the first two years of this Agreement, OEM
------------------
agrees to order from, and pay for, at least $[CONFIDENTIAL TREATMENT
REQUESTED]/*/ worth of the Software (net of discounts). This minimum commitment
shall be met through non-refundable cumulative Software orders as follows:
--------------------------------------------------------------------------------------------------------
Period # Cumulative Commitment Order by no later than the
(net of discounts) following Due Dates:
--------------------------------------------------------------------------------------------------------
1. $[CONFIDENTIAL TREATMENT REQUESTED]/*/ $[CONFIDENTIAL TREATMENT REQUESTED]/*/
--------------------------------------------------------------------------------------------------------
2. $[CONFIDENTIAL TREATMENT REQUESTED]/*/ $[CONFIDENTIAL TREATMENT REQUESTED]/*/
--------------------------------------------------------------------------------------------------------
3. $[CONFIDENTIAL TREATMENT REQUESTED]/*/ $[CONFIDENTIAL TREATMENT REQUESTED]/*/
--------------------------------------------------------------------------------------------------------
4. $[CONFIDENTIAL TREATMENT REQUESTED]/*/ $[CONFIDENTIAL TREATMENT REQUESTED]/*/
--------------------------------------------------------------------------------------------------------
5. $[CONFIDENTIAL TREATMENT REQUESTED]/*/ $[CONFIDENTIAL TREATMENT REQUESTED]/*/
--------------------------------------------------------------------------------------------------------
6. $[CONFIDENTIAL TREATMENT REQUESTED]/*/ $[CONFIDENTIAL TREATMENT REQUESTED]/*/
--------------------------------------------------------------------------------------------------------
7. $[CONFIDENTIAL TREATMENT REQUESTED]/*/ $[CONFIDENTIAL TREATMENT REQUESTED]/*/
--------------------------------------------------------------------------------------------------------
8 $[CONFIDENTIAL TREATMENT REQUESTED]/*/ $[CONFIDENTIAL TREATMENT REQUESTED]/*/
--------------------------------------------------------------------------------------------------------
Total: $[CONFIDENTIAL TREATMENT REQUESTED]/*/
--------------------------------------------------------------------------------------------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
Page 16
To the extent OEM has not ordered the Minimum Commitment amount as of the
respective Due Date, then effective on such Due Date, OEM shall be deemed to
have ordered on a non-refundable basis Software in an amount equal to the
difference between the amount actually ordered by OEM and the Minimum Commitment
as of that date (the "Minimum Difference Order"). OEM shall be deemed to have
ordered such Software reflected in the Minimum Difference Order, and may
immediately or any time thereafter (even after termination of this Agreement),
draw-down such Software from the Master Copy. In order to draw-down such
Software, OEM shall request from Kana a license key to use the Software. The
draw-down for each such key shall be calculated based on the appropriate price
for such Software as determined by this Schedule A. Kana may immediately after
the Due Date invoice OEM for such Minimum Difference Order, regardless of
whether OEM actually draws-down such Software.
4. Upfront Training. Kana agrees to offer a one-time upfront sales, support
-----------------
and technical training course for up to a total of 20 OEM personnel (the
"Upfront Training"). OEM shall be required to take the Upfront Training in
groupings as reasonably determined by Kana, with the current expectation that
one (1) technical training session will be held at the principal offices of Kana
and one (1) sales/support training session will be held at the principal offices
of OEM. Kana shall waive the course fees for the Upfront Training, provided
that OEM pays all out-of-pocket expenses of Kana.
Page 17
EXHIBIT A-1
Kana Response - Server Pricing
Kana Response - Standard........................... US$[CONFIDENTIAL TREATMENT REQUESTED]/*/ per server
. Kana Mail
. Kana Control
. Kana Reports
. 5 seats/1/
Additional Products:
Kana Direct........................................ $[CONFIDENTIAL TREATMENT REQUESTED]/*/ per server
Kana Link.......................................... $[CONFIDENTIAL TREATMENT REQUESTED]/*/ per server
Kana Forms......................................... $[CONFIDENTIAL TREATMENT REQUESTED]/*/ per server
Kana Notify (introductory price)................... $[CONFIDENTIAL TREATMENT REQUESTED]/*/ per server
Kana Classify (introductory price)................. $[CONFIDENTIAL TREATMENT REQUESTED]/*/ per server
Total seat licenses (Price per seat)
. Seats 0 - 5................. included in initial license
. Seats 6 - 10................................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
. Seats 11 - 20.................................. $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
. Seats 21 - 50.................................. $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
. Seats 51 and above............................. $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
----------------------------------------------------------------
Kana Response - Enterprise Bundle................... $[CONFIDENTIAL TREATMENT REQUESTED]/*/ per server
. Kana Mail
. Kana Control
. Kana Reports
. Kana Direct
. Kana Link
. Kana Notify
. 20 seats/1/
Total seat licenses (Price per seat)
. Seats 0 - 20......................... in initial license
. Seats 21 - 50................................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
. Seats 51 and above.............................. $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
a. Kana Connect - Server Pricing
Kana Connect.................................................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
. First 500k active profiles
. Kana Campaign
. Kana Rollout
. Kana Connect Reports
Additional 500k active profiles................................. $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
----------------------------------------------------------------
Notes:
. Seats are discounted based on the total number of seats
purchased. For instance, the 10/th/ seat purchased is
$[CONFIDENTIAL TREATMENT REQUESTED]/*/ The 11/th/ seat is
$[CONFIDENTIAL TREATMENT REQUESTED]/*/.
. Prices do not include technical support, professional services,
shipping, or taxes
. All prices are in US dollars
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
Page 18
b. Kana Response - Seat Pricing
Kana Response - Bundled (minimum number of seats: 30)
. Kana Mail, Kana Control, Kana Reports, Kana Direct, Kana Link,
Kana Forms, Kana Notify
Total seat licenses (Price per seat)
. Seats 0 - 50.................................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
. Seats 51 - 100.................................. $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
. Seats 101 - 300................................. $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
. Seats 301 and above............................. $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
Kana Response - Unbundled
. Kana Mail, Kana Control, Kana Reports
o Seats 0 - 50............................. $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Seats 51 - 100........................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Seats 101 - 300.......................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Seats 301 and above...................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
. Kana Forms
o Seats 0 - 50............................. $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Seats 51 - 100........................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Seats 101 - 300.......................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Seats 301 and above...................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
. Kana Direct
o Seats 0 - 50............................. $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Seats 51 - 100........................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Seats 101 - 300.......................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Seats 301 and above...................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
. Kana Link
o Seats 0 - 50............................. $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Seats 51 - 100........................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Seats 101 - 300.......................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Seats 301 and above...................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
. Kana Classify
o Seats 0 - 50............................. $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Seats 51 - 100........................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Seats 101 - 300.......................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Seats 301 and above...................... $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
. Kana Notify
o Separate Instance........................ $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
c. Kana Connect
See Kana - Connect server pricing.
----------------------------------------------------------------------
Notes:
. All seat license purchases require a minimum of 30 seats
. Seats are discounted based on the total number of seats
purchased
. Prices do not include technical support, professional services,
shipping, or taxes
. All prices are in US dollars
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
Page 19
EXHIBIT B
SUPPORT
Level 1 Support
Support provided by DAVOX to it's End Users, either by telephone, modem or on
site, for the purpose of providing "how-to" information, environmental problem
isolation or correction of End User errors
Web based Case Logging and Online Access to Davox's Apriori "knowledge based
solutions tool"
Level 2 Support
Support provided by DAVOX to its End Users, either by telephone, modem or on-
site, for the purpose of diagnosing, product isolation and duplication of
technical problems and providing preventive maintenance in accordance with Davox
service and maintenance guidelines. Support includes installation or
replacement of hardware and installation or reinstallation of software and/or
patches. Support also includes diagnosis of difficulties caused by or related
to Local Area Network or external telecommunications connectivity or devices.
Xxxxx 0 Support
Support provided by Davox Technical Support either by telephone or modem, when
DAVOX'S Xxxxx 0 Support activities have failed to solve a problem, . Such
support includes advanced diagnostic services. Level 3 Support will provide a
complete resolution, a temporary fix or alternative procedure restoring full
service. When a temporary fix or alternative procedure is provided, a complete
resolution will be supplied as soon as practical thereafter Level 3 Support will
also submit Defects to Kana.
Development/Engineering Support
Support provided by KANA Engineering to KANA Technical Support when Xxxxx 0
Support is not successful, and passed on to DAVOX, to provide higher level
diagnostic services and corrective action that may include the development of
patches or other product design or modification changes. Kana will also accept
Defects from Davox Level 3 Support for resolution.
OEM maintains an organization and process to provide support for the Software.
Support under this Agreement shall include (i) diagnosis of problems or
performance deficiencies of the Software and (ii) a resolution of the problem or
performance deficiencies of the Software. OEM will provide telephone software
support 24 hours a day, 365 days per year. OEM will use diligent efforts to
cure, as described below, reported and reproducible errors in the Software. OEM
utilizes the following four (4) severity levels to categorize reported problems:
Severity 1 Critical Business Impact
The impact of the reported deficiency is such that the End-Customer is unable to
either use the Software or reasonably continue work using the Software. OEM
will commence work on resolving the deficiency within one-half hour of
notification.
Page 20
Severity 2 High Business Impact
Important features of the Software are not working properly and there are no
acceptable, alternative solutions. While other areas of the Software are not
impacted, the reported deficiency has created a significant, negative impact on
the End-Customer's productivity or service level. OEM will commence work on
resolving the deficiency within one (1) hour of notification.
SeveritY 3 Medium Business Impact
Important features of the Software are unavailable, but an alternative solution
is available or non-essential features of the Software are unavailable with no
alternative solution. The End-Customer impact, regardless of product usage, is
minimal loss of operational functionality or implementation resources. OEM will
commence work on resolving the deficiency within one (1) business day of
notification.
Severity 4 Low Business Impact
End-Customer submits a Software information request, software enhancement or
documentation clarification which has no operational impact. The implementation
or use of the Software by the End-Customer is continuing and there is no
negative impact on productivity. OEM will provide an initial response regarding
the request within one (1) business week.
Support For OEM Kana will maintain an organization and process to provide
support for the Software. Support shall include (i) diagnosis of problems or
performance deficiencies of the Software and (ii) a resolution of the problem or
performance deficiencies of the Software. Kana will provide telephone software
support on a business day basis. Business day is defined as 6:00 AM through 6:00
PM pacific time, excluding holidays and weekends with provisions for 24by7
Emergency phone support for Critical and High Business Impact Calls with
Response times of 30 minutes for Critical and 60 minutes for High. OEM shall be
permitted access to remotely accessible tools and/or informational databases if
and when they become available.
MAINTENANCE
During the term of this agreement, Kana will provide the OEM with copyrighted
patches, updates, releases and new versions of the Software along with other
generally available technical material. These maintenance materials including
the Software may not be used to increase the licensed number of versions or
copies of the Software. OEM agrees not to use or transfer the prior version but
to destroy or archive the prior version of the Software. All patches, updates,
release and new versions shall be considered part of the Software and shall be
subject to the license agreement related to the Software. The foregoing and any
other support to be provided by Kana is subject to payment to Kana of the
support fees set forth on Exhibit A. Kana will provide Davox the same level of
service(s) as above during the Warranty period.
DAVOX'S Obligations Before Requesting Service from KANA
In all cases, prior to requesting support from KANA, OEM shall take steps to
ensure that a problem is not caused by the End-Customer's operating system,
telephone system, telephony service provider, Local Area Network or
software/hardware not furnished by KANA. OEM shall also attempt to correct the
problem by utilizing its KANA-trained personnel to perform system diagnosis and
shutdown/restart procedures to diagnose or correct problems in accordance with
KANA service and maintenance guidelines.
Escalation Procedure
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KANA shall incorporate a procedure to prioritize each service call received from
OEM and, when appropriate, notify KANA Management and, as agreed, OEM management
to ensure serious system problems are communicated and resolved promptly.
Unless otherwise noted, all hours are clock hours not business hours.
Critical - 30 min. response.
High - 60 min. response.
Medium - 1 business day
Low - 5 business days
Training and Troubleshooting Tools and Goals
OEM should have access to Kana End-User and Maintenance training, including Kana
internal training courses to prepare and enable OEM Support Personnel to deliver
the services as stated in the Description section under Xxxxx 0, 0 xxx 0
Xxxxxxx. XXX will also have access to Kana troubleshooting tools and guides in
support of products resold under this agreement. In connection with training,
Kana will make available to OEM general courseware, syllabus, laboratory
exercises, tests and post training evaluations. forms Pricing for such training
shall be as set forth on Exhibit A. To the extent available, Kana will provide
OEM with WEB access to information and documentation.
Reporting
KANA shall offer DAVOX reports on the number of calls received from DAVOX and
status of defects affecting DAVOX'S sites, including current open and closed
calls and their associated priority. Information shall be provided in a format
and at a frequency mutually agreed to by DAVOX and KANA. KANA may, based upon
report information, recommend that DAVOX'S personnel attend refresher training
classes if the number of calls for assistance has been unusually high.
Exclusions
Kana shall not be responsible for correcting any errors not attributable to
Kana. Kana is not required to provide any Support relating to problems arising
out of:
a. altered, damaged, or modified Software;
b. Software that is not the most current release or the immediately
previous release, or where it is within 6 months following the
release of the current release, the second release prior to the
current release;
c. Software problems caused by OEM or End-Customer's negligence,
abuse, or misapplication, by use of the Software other than as
specified in the Documentation, or by other causes beyond the
control of Kana; or
d. Software installed on any computer hardware or operating system
not supported by Kana.
End-Customers currently on a valid service contract with Davox will be allowed
to upgrade to said supported release free of charge according to the terms and
conditions of this agreement and their agreement with Davox.
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General
Each party acknowledges that it has read this Agreement, they understand the
agreement and agree to be bound by its terms. Further, both parties agree that
this is the complete and exclusive statement of the Agreement between the
parties, which supersedes and merges all prior proposals, understandings and all
other agreements, oral and written, between the parties relating to this
Agreement. This Agreement may not be modified or altered except by written
instrument duly executed by both parties. The Software and the use thereof is
subject to the license agreement related to the Software.
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Exhibit C
Training
[LOGO OF KANA COMMUNICATION]
Kana Education Course Schedule
As of 11/12/99
Kana Response: Installation, Configuration, and Troubleshooting
--------------------------------------------------------------------------------
Description: This is the core module for understanding the product from a
technical perspective and having the ability to install, configure, and
troubleshoot the solution.
Schedule:
Cost: $500 a day per student to enroll in one of our scheduled courses OR $4000
a day for up to 10 people at customer's facility.
Length: 2.5 days
Regular Schedule:
November 15-17, 1999
December 6-8, 1999
January, 2000 Dates TBD
February, 2000 Dates TBD
Developing Your Content
--------------------------------------------------------------------------------
Description: Providing a methodology on content and workflow development is key
to a successful implementation. This course describes the information gathering
process consultants will complete with customers that will provide them with a
highly effective solution for their particular business needs.
Cost: $500 a day per student to enroll in one of our scheduled courses OR $4000
a day for up to 10 people at customer's facility.
Length: 1 day
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Schedule:
November 18, 1999
December 9, 1999
January, 2000 Dates TBD
February, 2000 Dates TBD
Kana Connect
________________________________________________________________________________
DESCRIPTION: This is the core module for understanding the product from a
technical perspective and having the ability to install and configure the
Connect solution.
Length: 3 days
Cost: $500 a day per student to enroll in one of our scheduled courses OR $4000
a day for up to 10 people at customer's facility.
Schedule:
November 3-5, 1999
December 13-15, 1999
January, 2000 Dates TBD
February, 2000 Dates TBD
Kana Link: Developing Using Kana's Apis
________________________________________________________________________________
DESCRIPTION: This course provides an introduction to developers and integrators
on how to develop custom application and integration using Kana Link.
Cost: $500 a day per student to enroll in one of our scheduled courses OR $4000
a day for up to 10 people at customer's facility.
Length: 2 days
Schedule:
Beta release in December 1999
Full rollout and monthly delivery beginning in January 2000
Advanced Rule Administration with Kana Response 4.5
________________________________________________________________________________
DESCRIPTION: While basic setup and administration of rules is relatively easy
and is covered in the standard administration training, to understand the full
power and functionality of our rules requires a more advanced training course.
This course provides
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an in-depth analysis of our rule engine including, models on creating rules in a
complex organization, the use of regular expressions in a rule, and other
advanced rule functionality.
Cost: $500 a day per student to enroll in one of our scheduled courses OR $4000
a day for up to 10 people at customer's facility.
Length: 1 day
Schedule:
Beta release in January 2000 (following 4.5 release)
Full rollout and monthly delivery beginning in February 2000
Kana Data Model and Custom Reporting
________________________________________________________________________________
DESCRIPTION: Understanding the Kana data model is critical for reports
administrators as well as administrators needing to access data directly from
our database. This course provides a detailed look at our data model, including
foreign key relationships, views, and stored procedures.
Cost: $500 a day per student to enroll in one of our scheduled courses OR $4000
a day for up to 10 people at customer's facility.
Length: 1 day
Schedule:
Beta release in December 1999
Full rollout and monthly delivery beginning in January 2000
Kana Classify Deployment
_______________________________________________________________________________
Cost: $600 a day per student to enroll in one of our scheduled courses OR $4000
a day for up to 10 people at customer's facility.
Length: 2.5 days
Schedule:
Beta release in December 1999
Full rollout and monthly delivery beginning in January 2000
Kana Forms
_______________________________________________________________________________
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Description: This course enables the participants to implement the Kana Forms
solution, including linking the Web Form Handler to the client's web site,
creating KXMF documents, and developing custom fields.
Length: 1 day
Cost: $500 a day per student to enroll in one of our scheduled courses OR $4000
a day for up to 10 people at customer's facility.
Schedule:
Beta release in January 2000
Full rollout and monthly delivery beginning in February 2000
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________________________________________________________________________________
Functional Implementation: Business Processes
________________________________________________________________________________
Course Description
Providing a methodology on content and workflow development is key to a
successful implementation. This course describes the information gathering
process consultants will complete with customers that will provide them with a
highly effective solution for their particular business needs.
Target Audience
Targeted primarily at the business content developer within an
organization or the Consultant that will work with a customer on
developing their content and workflow. Technical Consultants may also
find this useful in understanding the solution Kana Response provides
within an organization.
Prerequisites
Students should either have participated in the Kana Response:
Installation, Configuration, and Troubleshooting course, or be familiar
with the 3.0 product.
Learning Objectives
At the completion of this course students will be able to:
. Describe the implementation process and supporting documentation
. Design an effective workflow and content model, including categories.
. Add, modify, and configure all content administration modules
Delivery
This training will be instructor led and include hands-on and discussion
based modules.
Course Length
1 day
Modules
Items to cover in the training:
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. Implementation methodology
. Designing your content and workflow
. Understanding how environmental factors influence customer server
. Developing the appropriate content based on business needs and performance
expectations
. Administration in Kana Response
. Content Administration
. Processing rule design and deployment
. Getting the most out of Kana Reports
. Customer and End user Training
. Training process
. Training tools available
. Customer Case Studies and Best Practices
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_______________________________________________________________________________
Kana Response 4.0 Installation, Configuration, and Administration
_______________________________________________________________________________
Course Description
This is the core module for understanding the product from a technical
perspective and having the ability to install, configure, and troubleshoot
the solution.
Target Audience
Technical and System Administrators that need to implement and support a
Kana Response solution should attend this course.
Prerequisites
Familiarity with database applications, Internet protocols, and client
server technology. An understanding of SQL and NT Server are also
important.
Learning Objectives
At the completion of this course students will be able to:
. Define various Internet standards and how they relate to Kana Response
. Prepare an environment for the install
. Install and configure the Kana Response solution
. Perform server administration and maintenance
. Troubleshoot system problems
Delivery
This course will be delivered hands-on and will include various
presentations and labs. It will include the development of a fully
functioning Kana Response system.
Course Length
2.5 Days
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Modules
Items covered in the training:
. Product Introduction and Demo
. Technology Overview and Architecture
. Kana Response 4.0
. Mail protocols
. Web protocols
. Database
. Installation and Infrastructure
. Hardware and software requirements
. Preparing the environment for installation
. Redundancy and failover
. Installation, including multiple instance installs
. Administration.
. System parameters: Services, service watcher, registry keys,
kana.properties, server parameters
. Mail receiver and sender preferences
. Server parameters
. Administering rules
. System logs
. Maintenance
. Testing
. Functional and technical system testing
. Moving into production
. Troubleshooting in a live environment
. Error Logs
. Client and server errors
. Database specific errors
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. Kana Reports
. Installation and configuration
. Creating custom reports
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