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EXHIBIT 10.18
SUBSIDIARY LICENSE AND DISTRIBUTION AGREEMENT
EFFECTIVE DATE: January 1, 1999
PARTIES: WITNESS SYSTEMS, INC. WITNESS SYSTEMS LTD.
0000 Xxxxxxxxx Xxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000 Xxx Xxxx
Xxxxxxxxx
Xxxxxxxxx, Xxxxxx Xxxxxxx
XX00 0XX
("Witness") ("Limited")
RECITALS
Witness is engaged worldwide in the business of design, manufacturing,
licensing and distribution of computer software products, including its
flagship software program, Witness(R), and has developed substantial expertise,
know-how and technical information relating to such products, and is engaged in
continuing research and development to improve its products and agrees to make
such future products available to Limited; and
Limited, a wholly owned subsidiary of Witness, has been established to
market, license, distribute maintain and support Witness software products in
the Territory (as defined below), and to provide training for their use (both
directly and through sublicensing distributors); and
The parties have agreed that Witness will appoint Limited as a
distributor, localizer and reproducer of the Witness software products in the
Territory, subject to the terms and conditions of this Agreement with the
objective that Limited achieve an arms length return following a start up
period of operations.
Now, therefore, in consideration of the foregoing recitals and the
representations and covenant set forth in this Agreement, the parties agree as
follows:
SECTION 1
DEFINITIONS
1.1 Documentation means the user manual for a particular Software
Product(s), and any other written materials customarily supplied by
Witness for use with such Software Product(s).
1.2 Effective Date means the first indicated above.
1.3 License means the then current form of license agreement supplied by
Witness with the Software Product(s) setting forth the terms and
conditions under which end user licensees are authorized to use the
Software Product(s).
1.4 Localized Product(s) means, with respect to a particular Product(s),
the version of that Product(s) translated or modified into a language
or language version and/or modified to cause the software to conform
or be more compatible with the rules and requirements of the specified
languages, practices and business of a different business culture.
1.5 Reseller, means a business entity of any kind, contracting directly
with Witness or appointed by Limited, to sell or resell licenses for
Products and provide supplies and services to customers.
1.6 Product(s) means, collectively, the software product(s) (programs and
data which are either proprietary to Witness or for which it has a
license permitting sublicensing, in all cases limited to those items
listed on the then current price list for International sales),
documentation and License Agreement, and as generally used in this
Agreement, includes Localized Product(s).
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1.7 Revenue means gross value of sales of Product(s) invoiced by Limited,
exclusive of value added or sales taxes, and net of credits for
returns.
1.8 Royalties means all amounts payable to Witness by Limited for the
rights granted by Witness to Limited.
1.9 Territory means the country or countries, or parts thereof, listed on
Exhibit A.
1.10 Trademark means the name "Witness" and such other names and logos that
are used to identify a Product(s), including both those that are
listed on Exhibit A and any others of which Witness informs Limited
from time to time (whether registered or applied to be registered as a
trademark or service xxxx, or unregistered).
1.11 Confidential Information means any and all trade secrets and
confidential and proprietary information of Witness, and any other
materials of any kind which are designated or marked by Witness as
being confidential and proprietary materials of Witness.
SECTION 2
LICENSE AND ROYALTIES
2.1 Appointment, Exclusivity
Subject to the terms and conditions of this Agreement (including, but
not limited to, the payment by Limited of Royalties described in
section 2.3 below), Witness hereby grants to Limited and Limited
hereby accepts, a non transferable, exclusive license to assemble,
reproduce, market and distribute Product(s) (in object code form only)
in the Territory, and grants Limited the right to enter into
agreements with other responsible persons or entities as provided in
Section 10 to, distribute and supply the Product(s) in the Territory
during the term of this Agreement, subject to the then current Witness
License.
2.2 Localization
2.2.1 Further, with the approval of Witness, subject to its customary
procedures, Limited shall have the right, at its sole cost, to
translate and Product(s) into any languages Witness may authorize that
are applicable to the Territory to create Localized Product(s), which
Localized Product(s) may be reproduced and may be licensed, packaged,
distributed and sublicensed by Limited subject to this Agreement.
2.2.2 All right, title and interest in such Localized Product(s) shall
at all times be retained by Witness and Witness has full rights to
resell Localized Product(s). Limited hereby assigns, transfers, and
grants to Witness any of Limited's right, title, or interest, existing
now or acquired in the future by operation of law, in the copyrights,
trade secrets, trademarks, and other intellectual property rights
relating to the Localized Product(s) (including, without limitation,
all manuals, packaging, and all related materials and Documentation).
2.3 For the rights granted herein, Limited shall pay Royalties to Witness
in the amount of sixty percent (60%) of all Limited Revenues, in
accordance with Section 5 herein. Notwithstanding the foregoing,
following a start up period of operations, the royalty shall be
adjusted not less than annually so the Limited shall achieve an arms
length return, which the parties agree is reasonable compensation in
respect to the risks of the Limited undertaken pursuant to this
Agreement. The determination of the adjustment necessary to royalties
(if any) will be made at the end of the fiscal year (December 31st)
upon review of the final adjusted results of operations of Limited for
the fiscal year then ended.
2.4 Witness Reserved Right
2.4.1 Witness, on its own behalf and on behalf of its distributors,
partners, or other resellers, specifically reserves the right to
effect corporate-wide master agreements with multinational
corporations whose corporate headquarters lie outside the Territory.
In this event, such customers may elect to be supported locally by the
Reseller or remotely by Witness. If remote support by Witness is
requested by the customer, the customer will license with and remit
payment directly to Witness, in which case Witness will not owe the
Reseller any payments as a result of that customer's license.
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2.4.2 Witness reserves the right to assign the nonexclusive right to
market and license the Product(s) to hardware or software suppliers
("OEMs"). Any right to market and license granted to the OEM shall be
limited to the Product(s) that execute on that OEM hardware or
software. Providing Witness is not under a confidentiality
restriction, Witness will provide Limited notice of such OEM.
2.5 Competing Product(s)
Limited shall not during the term of this Agreement localize,
duplicate, produce or distribute goods in the Territory which compete
with the Product(s)
SECTION 3
OBLIGATIONS OF LIMITED
3.1 Best Efforts
Limited shall use its best and reasonable efforts to vigorously and
aggressively promote the Product(s) in the Territory, and act in
accordance with Witness policies as announced from time to time as
they relate to Limited's obligations herein.
3.2 Marketing and Advertising
3.2.1 Limited shall be required to employ full time at least one
individual charged solely with the responsibility for the commercial
success of the Product(s).
3.2.2 Limited shall indemnify and hold Witness harmless from all
losses, damages, liabilities, costs, and expenses incurred by Witness
as a result of Limited using advertising or promotional materials.
3.3 Support
3.3.1 From and after the Effective Date, Limited shall make reasonable
efforts to support the Product(s). Limited will employ and train an
adequate number of persons to market, distribute, and support the
Products. Limited will follow Witness procedures and policies in
connection with the support services to be provided to Sublicensees,
including telephone support.
3.3.2 Limited shall comply in all respects with Witness's reasonable
directions on all aspects of support of the Product(s) in the
Territory.
3.3.3 In no circumstances will Witness be required to provide support
in relation to the Product(s) in the Territory other than to Limited.
3.4 Warranty Work
Limited shall, at its own cost and expense, provide all warranty
service to end users in the Territory, and honor any rights given to
end users under the standard Witness License Agreement.
3.5 Copying
3.5.1 Except as specifically permitted by this Agreement, Limited
shall not translate, modify, reproduce, copy, reverse engineer,
disassemble or de-compile the Product(s) (or any part of them) without
the express prior written permission of Witness.
3.5.2 All copyrights and intellectual property rights in the
Product(s), Localized Product(s), any derivative Product(s), and any
improvements of the Product(s), shall be the property of Witness.
3.6 Governmental Approvals
Limited, at its sole cost and expense, will take whatever action may
be necessary to obtain any governmental approval or registration of
this Agreement required at any time during this term of this Agreement
(including, without limitation, any approval or registration required
to give legal effect to this Agreement in the Territory or to comply
with exchange regulations or other requirements so as to assure the
right of remittance to Witness abroad of US dollars pursuant to
Section 5 below), and shall keep Witness currently informed of
Limited's efforts in this regard. Witness shall be under no obligation
to ship Product(s) to Limited or to allow localization, or
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duplication of Product(s) under this Agreement until Limited has
provided Witness with satisfactory evidence that no such approval or
registration is required or Limited has obtained all required
approvals and registrations.
3.7 Inspection Rights
Limited shall allow representatives of Witness on reasonable notice
and during normal working hours, to examine Limited's place(s) of
business, records of Revenue and Royalties for the purpose of
verifying to the satisfaction of Witness that Limited is performing
Limited's obligations under this Agreement. Limited's shall use its
best efforts to procure rights allowing Witness on reasonable notice
and during normal working hours, access to places of business where
Products are licensed, for Witness to perform similar inspections.
3.8 Limited shall:
3.8.1 Conduct business in a manner that reflects favorably at all
times on the Product(s), good name, goodwill, and reputation of
Witness;
3.8.2 Avoid deceptive, misleading, or unethical practices that are or
might be detrimental to Witness, the Product(s), Witness Resellers, or
the public;
3.8.3 Not publish or employ or cooperate in the publication or
employment of any misleading or deceptive advertising materials;
3.8.4 Not make representations, warranties, or guarantees to
customers, the trade or other third parties with respect to the
specifications, features, or capabilities of Product(s) that are
inconsistent with or in addition to the literature distributed or
approved by Witness (including all warranties and disclaimers
contained in such literature);
3.8.5 Comply with each provision of the international license attached
as Exhibit B agreement that accompanies a Product;
3.8.6 Provide each licensed end user with a then current Witness
International License Agreement (current license set forth in Exhibit
B) and a Xxxx of Sale which shall include: the customer's name,
address, phone number, date of sale, and price of Product(s) sold;
3.8.7 Assure that all of Witness's intellectual property marks are
correctly included in all Witness Product(s) localized or duplicated
by Limited, and in all marketing materials developed by Limited; and
3.8.8 Immediately advise and copy Witness with any legal notices
served on Limited that might affect Witness.
3.8.9 Be responsible for the collection of all accounts receivable to
Limited, and will maintain an adequate level of reserves for bad debts
and returns in accordance with Witness accounting policies relating to
the allowance for bad debts and returns.
3.9 Personnel
Limited shall engage experienced personnel and will maintain adequate
facilities in the performance of its obligations under this Agreement.
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SECTION 4
ROYALTY PAYMENTS AND REPORTS
4.1 Payments
4.1.1 Within sixty (60) days following the end of the quarter, Limited
shall pay to Witness by wire transfer (see Exhibit A for bank
information) the Section 2 Royalty payment resulting from the previous
quarter.
4.1.2 All Royalty payments shall be in US dollars converted from
British pounds sterling at the exchange rate prevailing at the end of
the quarter for which the Royalty is earned and recognized.
4.1.3 Late payments shall bear interest at the rate of one and one
half percent (1.5%) per month.
4.2 Reports
Limited shall provide to Witness written sales and activity reports on
a monthly basis, on or before the fifteenth day of each month, showing
the Revenue on which the wired Royalty has been based and the
conversion basis, and including a detailed description of: Product
shipments, amounts billed, reports from Limited's distributors and
Resellers, and complete end user information.
SECTION 5
TERM AND TERMINATION
5.1 Term
This Agreement shall commence on the Effective Date, and shall
continue for five (5) years. However, if by the fifth anniversary of
the Effective Date, this agreement has not been terminated, or
extended by the parties, then this Agreement shall continue in effect
until modified in writing by the parties, or terminated in accordance
with this Section 5, or as may be otherwise provided herein. After the
initial five (5) year period, either party may terminate this
Agreement with six (6) months prior written notice.
5.2 Termination for Breach
Witness may, at its option, terminate this Agreement by written notice
to Limited if Limited fails to pay any amounts owed to Witness under
this Agreement within forty-five (45) days of the due date thereof.
5.3 Termination for Breach/Insolvency
5.3.1 Either party shall have the right without liability to the other
to terminate this Agreement immediately upon sending written notice to
the other in the event that the other shall:
5.3.1.1 be in breach of any material obligation on its part to
be performed and shall have failed to remedy such breach within thirty
(30) days from the date of a written notice specifying the breach and
requiring its remedy; or
5.3.1.2 be adjudged insolvent or bankrupt, take or have taken
against it any proceedings or action seeking relief, reorganization,
or arrangement under any laws relating to insolvency, make or suffer
any assignment for the benefit of creditors, suffer the appointment of
any receiver, liquidation, or trustee of any of its property or
assets, or suffer liquidation, dissolution, or winding up of its
business or any analogous action taken on account of its financial
position.
5.4 Termination by Witness
5.4.1 Witness shall have the right without liability to Limited to
terminate this Agreement immediately upon sending written notice to
the Limited in the even that Limited:
5.4.1.1 In the sole opinion of Witness, fails to adequately
market or distribute the Product(s) in the Territory in accordance
with Section 3 of this Agreement, or in the sole opinion of Witness,
to adequately fulfill each and every other obligation imposed by
Section 3 of this Agreement;
5.4.1.2 Limited ceases to be a controlled subsidiary of
Witness.
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5.4.2 Any election by Witness to terminate this Agreement as provided
for in this Section 5.4, or elsewhere in this Agreement, shall be
deemed to be authorized by this Agreement, effective and enforceable
unless made in bad faith.
5.4.3 Further, and notwithstanding anything to the contrary, any sales
or grant by Witness of rights to distribute Product(s) in the
Territory, after an election to terminate this Agreement by Witness
but before any determination is made as to whether such termination
was made in bad faith, shall not constitute a breach of this Agreement
and/or violations of any rights of Limited to distribute the
Product(s).
5.5 Termination Without Cause
Either party may terminate this Agreement without cause effective
after the first five (5) year term, or thereafter, by sending written
notice to the other at least sixty (60) days in advance of the final
termination date, specifying the date on which this Agreement shall
also terminate.
5.6 Consequences of Termination
5.6.1 Upon termination of this Agreement however arising:
5.6.1.1 All outstanding invoices owed by Limited to Witness
shall become immediately due and payable;
5.6.1.2 Limited shall, within ten (10) days, submit to Witness
a written list of its inventory of the Product(s), and Witness shall
have the right to repurchase from Limited all or such part as Witness
shall stipulate of such inventory;
5.6.1.3 Witness shall have the right by written notice to
cancel all or any part of any unfulfilled order previously accepted by
Witness; and, to the extent that Witness does not cancel any such
order, this Agreement shall continue to apply to such order;
5.6.1.4 Any provision of this Agreement expressly stated to
survive or implied to survive, termination shall remain in full force
and effect;
5.6.1.5 Limited shall, within thirty (30) days of termination,
return to Witness all Witness property in Limited's possession,
(including, without limitation, all Witness business plans and
customer/prospect lists and any Witness Confidential Information) and
Limited shall remove, cancel, and/or cease to use the Trademarks, any
signs, advertising or other materials referring either to Witness, or
to Limited as a distributor of Witness Product(s);
5.6.1.6 No rights of either party accrued as of the date of
termination shall be adversely affected or prejudiced;
5.6.1.7 No License to an end user customer shall be affected.
Any licenses for the Product(s) and the Localized Product(s) purchased
by Limited for internal use shall remain in effect subject to the
terms and conditions of the then current Witness Standard License
Agreement;
5.6.1.8 Limited shall cease to provide sales and maintenance
for the Product(s) and shall fully cooperate with Witness to ensure
efficient hand over of all maintenance, sales and support arrangements
in relation to the Product(s) to such person(s) or entities as Witness
shall designate; and Limited shall terminate all Witness Reseller
agreements with Limited as of termination date and the agreement
between Limited and Resellers shall expressly provide for this;
5.6.1.9 Limited agrees to assign all rights with respect to
agreements in effect at the time to a successor subsidiary or to
Witness, as designated by Witness in its sole discretion. All future
Revenues shall be payable directly to the successor subsidiary or
Witness.
5.7 No Damages for Termination or Expiration
5.7.1 Neither Witness or Limited shall be liable to the other for
damages of any kind, including incidental or consequential damages, on
account of the termination or expiration of this Agreement in
accordance with this Section 5.0. Limited waives any rights Limited
may have to receive any compensation or reparations on termination or
expiration of this Agreement. Limited and Witness acknowledge and
agree that:
5.7.1.1 Limited shall not have or acquire, by virtue of this
Agreement or otherwise, any vested, proprietary, or other right in the
promotion of the Product(s) or in any goodwill created by its efforts
under this Agreement.
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SECTION 6
PRODUCT ORDERS
6.1 Order Mechanism
For items relating to Product(s) that are not localized or duplicated
or produced by Limited, Limited may submit orders to Witness. All
orders for Product(s) shall be in writing and shall state the
quantities of units ordered, requested delivery date, shipping
instructions, and such other information as Witness shall require. All
orders shall be subject to acceptance in writing by Witness and shall
be subject to and governed by the provisions of this Agreement. In the
event of any conflict between the provisions of this Agreement and the
provisions of any order, this Agreement shall prevail (unless, and
only to the extent that, Witness otherwise specifically agrees in
writing as to a particular order).
6.2 Cancellation
6.2.1 Witness reserves the right to cancel any orders accepted by
Witness, or to refuse or delay shipment thereof, if Limited either:
6.2.1.1 fails to make any payment as provided in this Agreement
or otherwise agreed to by Witness and Limited; or
6.2.1.2 otherwise fails to meet any of its material obligations
under this Agreement.
6.2.2 No such cancellation, refusal, or delay shall be deemed a
termination or breach of this Agreement, except upon Witness's written
election.
6.3 Order changes
6.3.1 Limited is entitled to cancel any order, or any portion thereof,
without penalty so long as the cancellation notice is received by
Witness at least thirty (30) days prior to the requested shipment
date. Limited is not entitled to cancel any order, or portion thereof,
within thirty (30) days of the requested shipment date unless Witness
agrees to such cancellation in writing.
6.3.2 Limited may delay shipment under any order, no more than once
per order, upon written notice to Witness, received by Witness at
least thirty (30) days prior to the requested shipment date, provided
that such delay does not exceed thirty (30) days. Orders under which
shipments have been delayed may not be canceled. Delays not in
accordance with the foregoing will be treated as cancellations.
6.4 Taxes, Imposts, Duties
6.4.1 All payments required under any order (or otherwise under this
Agreement) are exclusive of taxes, assessments, customs, imposts Value
Added Tax and duties of whatever nature and howsoever arising
(collectively "Tax" or "Taxes"), and Limited shall bear and be
responsible for the payment of all such Taxes (excepting only any tax
based solely upon Witness's income).
6.4.2 When any Tax is required to be paid by Witness the full amount
thereof, including any interest and penalties, will be billed to
Limited separately, whether or not this Agreement is then in effect,
and shall be promptly paid by Limited including any interest or
penalties, directly to the appropriate authority.
SECTION 7
MANUFACTURING REQUIREMENTS
7.1 Master Disks and Documentation
7.1.1 For items relating to Product(s) that are localized or
duplicated by Limited, Witness will provide Limited with one (1)
master disk for Witness Software Product(s) and Documentation.
7.1.2 Limited agrees that each Software Product/Localized Product it
duplicates shall be subject to the then current Witness International
License Agreement attached as Exhibit B to this Agreement,
appropriately translated, with a copy provided by Limited to each end
user.
7.1.3 For each Software Product/Localized Product produced, Limited
will order a book box, a package sleeve and the documentation
(collectively referred to as "Production Materials") from
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Witness. Limited may order Production Materials from Witness in bulk
and at Witness's cost to obtain Production Materials.
7.1.4 At the time of shipment of the Production Materials, Witness
will invoice Limited, for the cost of the Production Materials and
shipping in U.S. dollars. Limited agrees to remit payment to Witness
in U.S. dollars within thirty (30) days of the date of invoice.
7.1.5 Limited will, at its sole cost, assemble the Software
Product(s)/Localized Product(s) to include, but not be limited to, the
software media, a book box, a package sleeve, and the documentation,
and ship to its customers. Witness reserves the right to add
additional information or documents to the Software
Product(s)/Localized Product(s) package at its discretion and its
cost.
7.1.6 Witness may purchase any Localized Product from Limited at cost.
SECTION 8
WARRANTY DISCLAIMER, INDEMNIFICATION AND LIMITATION OF LIABILITY
8.1 DISCLAIMER OF WARRANTY
EXCEPT AS EXPRESSLY SET FORTH IN THE LICENSE, NEITHER WITNESS NOR ANY
OF ITS SUBSIDIARIES NOR ASSOCIATED COMPANIES, MAKE OR GRANT ANY
CONDITIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY
GOODS, PRODUCTS, OR SERVICES PROVIDED UNDER THIS AGREEMENT OR
OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
LIMITED AGREES AND ACKNOWLEDGES THAT WITNESS IS NOT RESPONSIBLE OR
LIABLE FOR THE QUALITY AND PERFORMANCE OF THE THIRD PARTY SOFTWARE,
AND THAT ANY WARRANTIES OR REPRESENTATIONS RELATING THERETO MAY BE
MADE SOLELY BY THE OWNER OF THE THIRD PARTY SOFTWARE.
8.2 Limited has no authority, express or implied, to make any warranties,
representations or disclosure, nor to authorize any of its customers
or agents to make any warranties, representations, or disclosures,
beyond those provided by Witness in the License.
8.3 Indemnification
Witness agrees to indemnify, defend and/hold harmless at its own
expense any claim or action against Limited for actual or alleged
infringement of any U.S. patent, copyright or similar property right
under enforceable in the U.S. (including, but not limited to,
misappropriation of trade secrets) based upon use of the Witness
Software or any other material furnished hereunder by Witness;
provided (i) Witness shall have the sole right to conduct the defense
of any such claim or action and all negotiations for its settlement or
compromise, and (ii) Limited shall give Witness prompt written notice
of any threat, warning or notice of any such claim or action against
Limited, which could have an adverse impact on Limited.
8.4 LIMITED LIABILITY
WITNESS LIABILITY FOR ANY BREACH OF WARRANTY ON ANY PRODUCT(S) SHALL
BE LIMITED TO ITS OBLIGATIONS UNDER THE LICENSE FOR SUCH PRODUCT(S),
WHICH IN NO EVENT SHALL EXCEED THE ACTUAL AMOUNTS PAID BY LIMITED FOR
SUCH PRODUCT(S) AND SHALL IN NO EVENT INCLUDE INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND.
IN NO EVENT SHALL WITNESS BE LIABLE FOR ANY INCIDENTAL, INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF
THIS AGREEMENT OR THE EXISTENCE, FURNISHING, FUNCTIONING, OF LIMITED'S
OR ANY THIRD PARTY'S USE OF PRODUCT(S) LICENSED HEREUNDER. THE
PROVISIONS OF THIS SECTION HAVE BEEN INCLUDED AS A MATERIAL
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INDUCEMENT FOR WITNESS TO ENTER INTO THIS AGREEMENT, AND WITNESS WOULD
NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE LIMITATIONS ON
LIABILITY SET FORTH.
SECTION 9
TRADEMARKS AND CONFIDENTIAL INFORMATION
9.1 Exclusive Witness Rights
Limited acknowledges the exclusive right of Witness in and to all of
the Trademarks and all of the copyrights, trade secrets, and other
intellectual property and proprietary rights in the Product(s) and all
other material covered by this Agreement. Witness hereby grants
Limited a non-exclusive license to use the Trademarks, subject to the
terms and conditions set forth in this Agreement, solely for the
purpose of the supply and distribution of the Product(s) pursuant to
this Agreement.
9.2 Prior Approval
Limited shall provide to Witness copies of all Limited created
materials containing any Witness intellectual property marks, and will
immediately cease production of any material which, in Witness's sole
opinion, is inappropriate to Witness's image and status.
9.3 Manner of Use
Whenever Limited is permitted to incorporate Witness Trademark in any
written material, Limited shall correctly attribute the Trademark by
use of an asterisk and a footnote reading "Trademark of Witness
Systems, Inc., Alpharetta, Georgia, U.S.A." or, if registered, then
"Registered Trademark" of Witness Systems, Inc., Alpharetta, Georgia,
U.S.A."
9.4 Restriction on Use of Other Marks
Limited may not use any trademarks or service marks on the Product(s)
other than those trademarks and service marks that are designated by
Witness.
9.5 License Limitation
No right or license under any intellectual property or other
proprietary right of Witness is granted by, or is to be inferred from,
any provision in this Agreement except as expressly provided herein.
9.6 Confidentiality
9.6.1 Limited agrees to keep secret and not to disclose any
confidential or proprietary information of Witness (including, without
limitation, the terms of this Agreement) acquired hereunder or in
connection herewith except as authorized in writing by Witness and
shall keep and shall require its officers, directors and employees to
keep confidential such information. The obligation herein to keep such
information confidential shall continue in effect after as well as
before the expiration or termination of this Agreement and unless and
until the information concerned becomes publicly available freely.
9.6.2 Immediately, upon any termination of this Agreement, Limited
shall surrender to Witness, or certify destruction of, all of
Witness's confidential or proprietary material.
SECTION 10
APPOINTMENT OF WITNESS RESELLERS
10.1 Limited may appoint Resellers within the Territory, provided that any
agreement between Limited and a Reseller must contain substantially
the same terms and conditions as the then current Reseller Agreements
as approved by Witness, may not conflict in any manner with this
Agreement, and may not permit appointments of other Resellers.
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10.2 In all cases, such agreements shall be terminated upon termination of
this Agreement with Witness, except that such Resellers shall have the
option of entering into direct distribution agreements with Witness.
SECTION 11
MISCELLANEOUS PROVISIONS
11.1 Force Majeure
If the performance of any part of this Agreement (excepting only
Limited's obligation to make payments to Witness), or any order issued
under this Agreement, shall be interfered with for any length of time
by governmental restriction, war, civil commotion, riot, strike, lock
out, shortage of labor or materials, acts of God (such as typhoon,
flood or fire), or any other similar cause which is beyond the control
of the parties, then neither party shall be responsible for delay or
failure of performance of this Agreement or any such order for the
length of time occasioned thereby. If such failure shall continue for a
period of more than three (3) months, either party shall have the
right forthwith to terminate this Agreement or any such order on
written notice to the other party.
11.2 Pricing, Licensing of Software and Documentation
Limited shall set the prices charged by Limited for the Product(s)
sublicensed by Limited. Limited shall provide Witness with a copy of
its most current license fee schedules for the Product(s), in the
accepted currency of the Territory at least ninety (90) days prior to
the effective date of the new license-fee schedules.
11.3 Waiver
The failure of either party to enforce any of the provisions of this
Agreement or to exercise any right hereunder shall not constitute a
waiver of the same or prejudice the right of the waiving party to
enforce the same thereafter.
11.4 Notices
All notices required or permitted under this Agreement shall be in
writing and shall be deemed to have been given upon personal delivery
or sending by telex (followed by hard copy), or by registered,
certified or express mail, to the parties at the following addresses
(or, with respect to any party, such other address as may hereafter be
specified by such party by like notice).
If to Witness: If to Limited:
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0000 Xxxxxxxxx Xxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx XXX 00000 The Ring
FAX: (000-000-0000) Xxxxxxxxx
Xxxxxxxxx, Xxxxxx Xxxxxxx
XX00 0XX
FAX:
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ATTN: CHIEF FINANCIAL OFFICER ATTN: VP, INTERNATIONAL OPERATIONS
11.5 Governing Law and Jurisdiction
11.5.1 This Agreement is to be performed and construed in all respects
pursuant to the substantive laws of the State of Georgia and of the
United States, as applicable.
11.5.2 The parties hereby submit to the exclusive jurisdiction of any
of the following courts: (i) the United States District court for the
Northern District of Georgia; (ii) Superior Court of Xxxxxx County,
Georgia; and (iii) State Court of Xxxxxx County, Georgia, for the
determination of any controversy arising under or in connection with
this Agreement. The parties agree that the United Nations Convention
on Contracts for the International Sale of Goods shall not apply in
any respect to this Agreement or the parties hereto.
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11.6 Assignment
Limited shall not assign this Agreement nor any rights hereunder to
any third party without the prior written consent of Witness, which
Witness shall have no obligation to give, and any attempted assignment
of this Agreement in contravention of this provision shall be void and
of no effect. There shall be no prohibition or restriction on
Witness's ability to assign this Agreement or any rights hereunder in
whole or in part. Subject to the foregoing, this Agreement shall bind
and inure to the benefit of Witness and Limited and their respective
successors and assigns.
11.7 Severability
If any portion of this Agreement is held to be invalid, void, or
unenforceable for any reason, the remaining provisions of this
Agreement shall be given full force and effect, as though the invalid,
void or unenforceable provisions had never been contained herein;
provided however, if the invalid portion can be reformed by a court of
competent jurisdiction, it shall be so reformed, and enforced to the
maximum extent permitted by law.
11.8 Headings
The headings in this Agreement are for purposes of convenience only,
and they are not intended to be a material party of the Agreement,
and, in the event of any conflict between headings, the text and any
exhibits attached thereto, the order of preference shall be text,
exhibit and headings.
11.9 All communications with Witness, oral or written, shall be in English.
11.10 Entire Agreement, Modification
This Agreement, including all Exhibits, constitutes the entire
agreement of Witness and Limited with respect to the subject matter
hereof and supersedes all previous agreements, negotiations, and
commitments with respect thereto. This Agreement shall not be changed
or modified in any manner, except by mutual consent in writing of
subsequent date signed by duly authorized representatives of each
party to this Agreement.
11.11 Attachments
The following Exhibits are appended to and incorporated as part of
this Master Agreement.
Exhibit A Products, Territory, Trademarks
Exhibit B Witness Systems, Inc. current International License Agreement
Executed on each party, by its duly authorized representative, with
all necessary approvals, on the dates set forth below, and effective
as of the date first set forth above.
WITNESS SYSTEMS, INC. WITNESS SYSTEMS, LIMITED
BY:/s/ Xxx Xxxxxx BY: /s/ Xxxxx Xxxxxxx
------------------------ -------------------------
Name:Xxx Xxxxxx Name: Xxxxx Xxxxxxx
---------------------- -----------------------
Title:CFO Title: VP
--------------------- ----------------------
Date:12/31/99 Date: 12/31/99
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